The proposed unitary industrial system represents a dramatic escalation in the process of individualisation and union exclusion. Employers and employees have always had the freedom to bargain individually above and beyond minimum award conditions through common law contracts. The introduction of awas enabled employers to transcend particular award provisions provided that there was no disadvantage to the employee in their overall terms and conditions of employment. The abolition of the no disadvantage test contributes nothing more than the unprecedented freedom of employers to present employees with terms that are wholly inferior to employment benefits that have been protected by awards made in both the State and Federal industrial systems for over. As a consistent step in the march of the howard governments legislative agenda, these reforms may be regarded as evolutionary. But the consequences for Australian society are revolutionary because, for the first time, the collective safety net will be breached. References all legislation cited in this article is available online. 1999, Organisational change, labour flexibility and the contract of employment in Great Britain, in Employment Relations: Individualisation and Union Exclusion, eds.
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There has also been a margo proposal to make union entry into a workplace conditional upon a written invitation from a union member, and also upon the employers satisfaction that the union has provided adequate particulars of any suspected breach of an industrial instrument. Conclusion it is impossible to discern any semblance of impartiality in the howard governments legislative record in workplace relations. Its record amply demonstrates a persistent attempt to reduce the power of trade unions. The government has doggedly pursued this objective with a steady flow of legislation that both directly constrains the actions of unions (such as limiting the scope for industrial action and right of entry into workplaces) and that undermines the essential instruments with which unions are. There is good reason to anticipate that the government will attempt to use its formal majority in the senate to resurrect many of its legislative initiatives that have so far failed to pass, either as part of its initial reforms or at a later stage. After all, it has done so in recent times even without a majority in the senate. The key element is the proposal to abolish the no disadvantage test for awas. Based on this record I highlight some potential, though so far unspoken, elements of the governments reform agenda. The supremacy of awas is likely to be further enhanced by making new awas prevail over all pre-existing collective agreements, and by diluting the procedural safeguards for vetting awas and non-union collective agreements. The individualisation of the workplace may be encouraged by further curtailing the right to take industrial action in support of union-negotiated collective agreements. Finally, unfair dismissal rights may ultimately be denied to a broader range of employees irrespective of the size of their employer.
The wra currently provides that pre-existing collective agreements can prevail over any subsequent awa where there is any inconsistency. Consistent with this approach, the governments past legislative proposals reveal a strategy of diluting the procedural safeguards for vetting awas and collective agreements, such as: introducing a statutory presumption that awas meet the no disadvantage test for employees earning more than 68,000 per annum, and. Industrial action and trade union rights The government has taken a literal approach to union exclusion. There has been a steady stream of legislation aimed at curtailing the right to strike and the right of union officials to enter workplaces. Beginning with the more jobs, better pay bill, fuller through five subsequent bills and ending (so far) with the current Workplace relations Amendment (Better Bargaining) Bill 2005, the government has attempted to: make it easier for employers to obtain orders preventing employees from taking and continuing. The government has also taken a literal approach to union exclusion. It has attempted to introduce a wide range of grounds for refusing to issue a union official with a permit to enter workplaces, such as if the official has not received appropriate training in the rights and obligations of permit holders, and if the officials.
It has long been recognised that unions and employers in Australia have had collectively bargained agreements made by industrial tribunals as consent awards. The political compromise which tied paper awas to the no disadvantage test might have been regarded as part of an effort to achieve a new, individualised culture in workplace relations rather than as a crude attempt to gain quick profits through cutting labour costs (Mitchell fetter. 28 although Professor Stewart, among others, has doubted the proper application of this test given the oeas evangelical approach to the promotion of awas (Stewart 2005,. Awas may abolish common award rights such as overtime and weekend penalty rates. But as we have seen, the howard government now intends to allow awas to descend below the overall presentation floor of minimum terms and conditions of employment enshrined in awards made by an independent industrial umpire. This means that awas may abolish common award rights such as overtime and weekend penalty rates, shift allowances, meal allowances, annual leave loading, casual loadings, redundancy pay, and rights to study leave, to name a few. Moreover, the government has signalled that the ascendancy of awas will not end there. The proposal to streamline awa approvals invites close attention to the governments past reform attempts. The government has twice previously attempted to enhance the supremacy of awas by making new awas prevail over all pre-existing collective agreements.
No doubt emboldened by the prospect of controlling of the senate, the government now intends to radically expand the small business exemption to corporations that employ up to 100 employees. Awas, awards, and collective bargaining, nowhere is the drive for individualisation of employment relations more apparent than in the governments treatment of awas, awards, and collective agreements. Collective bargaining is a negotiating process where representatives of workers and employers endeavour to reach an agreement which governs the employment relationship between employers and all the employees covered by that agreement. This can be contrasted to individual bargaining which involves each employee acting alone and concluding an agreement in isolation from their fellow workers. The central role of trade unions in collective bargaining reflects the inherent imbalance of bargaining power between individual workers and their employers. This imbalance can be attributed to the usual disparity of economic capacity between an employer and an individual employee. The raison detre of the arbitration system in Australia has been to ameliorate the effects of the power imbalance inherent in the individual employment relationship. For most of its history, our arbitration system achieved this primarily by acting as an impartial umpire that sets fair and reasonable wages and conditions of employment through the instrument of comprehensive industrial awards.
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This includes the well established concept of does constructive dismissal where an employee may be regarded as having been dismissed when he or she leaves or resigns in response to an employer engaging in conduct amounting to a fundamental breach or repudiation of the employment contract. The government attempted to exclude employees who find themselves constructively dismissed in many circumstances. In addition, the bill sought to exclude employees who are dismissed on any grounds provided that one of those grounds includes the operational requirements of the employers business. This proposal would exclude employees who are dismissed for invalid reasons based on their conduct provided that the employer can show that another grounds for dismissal was the operational requirements of the business. In 2001, the government sought to exclude employees of businesses that employed up to twenty employees. This exclusion is proposed in a bill that is currently before parliament. Other attempts to undermine unfair dismissal rights have signalled the unitary and expansionist intentions of the federal government.
In 2002 the government introduced the. Workplace relations Amendment (Termination of Employment) Bill which sought to expand the federal unfair dismissal regime to all employees of constitutional corporations. The government now intends to radically expand the small business exemption from unfair dismissal laws. Similarly, the current, workplace relations Amendment (Small Business Employment Protection) Bill 2004 seeks to encroach upon the State jurisdictions by reversing a decision of the airc that removed an exemption for small businesses from redundancy pay obligations. It proposes exempting all constitutional corporations employing less than fifteen employees from redundancy pay obligations imposed by State laws and awards.
The governments record, the common description of the governments proposed unitary system as a second wave of industrial reform is a misnomer. It is, more accurately, a fourth wave. Between 1996 and now, consistent threads of policy have emerged. After implementing the wra in 1996 (first wave the then Minister for Workplace relations Peter reith introduced an omnibus bill called the. Workplace relations Legislation Amendment (More jobs, better pay) Bill 1999.
This bill set out a comprehensive blueprint of the governments ambitions for workplace relations reform including further attenuating the content of awards beyond the twenty allowable award matters set out in the wra, promoting awas, restricting the right to strike and unions right of entry. After the senate rejected this bill, the government abandoned the omnibus approach in favour of a piecemeal strategy that involved introducing several pieces of legislation over a number of years, with each bill resurrecting some components of the failed second wave reforms. On attaining a formal majority in the senate this year, the government has evidently reverted to its big bang approach to reform. Throughout this period, consistent threads of policy have emerged. Unfair dismissals, the government has tried and failed to exclude employees of small businesses from accessing remedies for unfair dismissal on at least nine separate occasions. The first attempt was the enactment of regulations under the wra in July 1997 which were later disallowed by the senate. The government presented additional legislation to same effect in 1997 (twice 19These bills sought to exclude new employees of businesses that employed less than fifteen employees from making application for relief on the ground that their termination was harsh, unjust or unreasonable. The, more jobs Better pay bill also attempted to broaden the range of employees who would be denied unfair dismissal rights. For example, an employee can only bring an action for unfair dismissal where their employment is terminated at the initiative of the employer.
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Federal legislation will establish four minimum employment conditions relating to annual leave, personal leave, parental leave and a maximum number of ordinary working hours, to be known as the australian fair pay and Conditions Standard. Second, a new body to be named the australian fair pay commission will periodically set the single adult minimum wage, replacing the present minimum safety net wage adjustment function of the australian Industrial Relations Commission (airc). Third, the process for making and approving awas real will be streamlined and awas will be subject to a new test, namely, whether they meet the australian fair pay and Conditions Standard comprising the four statutory minimum conditions referred to above, as well as the minimum. This replaces the current no disadvantage test under which awas can generally only be approved if they do not reduce the overall terms and conditions of employment of those employees under a relevant federal or state award and any other relevant federal or state law. The term of awas will also be extended from three to five years. Fourth, federal awards made by the airc will be further simplified by removing jury service, notice of termination, long service leave and superannuation provisions. The government will appoint a committee to further review and simplify other award provisions. Fifth, employers with up to 100 employees will be exempt from the federal unfair dismissal regime; but employees of these businesses will still have access to the unlawful termination provisions that prohibit termination on specific grounds such as race, gender, and trade union membership.
The government intends to establish a single set of national laws on industrial relations. The full impact of the governments reforms will not be known until the detail of the legislation is made available later in the year. However, a close look at the howard governments legislative agenda since 1996 serves two purposes. First, it exposes the recent reform proposal as the culmination of a persistent policy objective of marginalising unions by promoting individualised workplaces, and a creeping tendency in recent years to intrude upon State industrial jurisdictions. Second, it provides a reasonable guide as to what can be expected to emerge from the detail of the governments imminent industrial reform legislation. The proposed unitary industrial system, the Prime ministers announcement in may, and more recent comments by the Chairman of the governments Taskforce on Workplace relations Reform, Andrew investors Robb, reveal five key elements to the proposed reforms. First, the government intends to establish a single set of national laws on industrial relations using the corporations power in the australian Constitution.
21st century the state of Australias long-standing systems of industrial conciliation and arbitration, in which fair and reasonable work conditions are set by independent industrial tribunals making awards and approving collectively negotiated. This should arouse alarm, particularly among non-unionised employees and responsible employers. Independent empirical research on individualised workplaces in Britain and Australia (that is, workplaces with minimal union presence and a majority of the non-managerial workforce employed on individual employment contracts) has found that they demonstrate very little evidence of actual negotiation between employer and employee. These workplaces lack both procedural fairness for employees and mechanisms for voicing their concerns, and are marked by very high levels of employee turnover (deakin 1999; deery walsh 1998; deery walsh 1999; deery, walsh knox 1999; Mitchell fetter 2002). In a recent submission to a senate inquiry, professor Andrew Stewart has usefully summarised the results of objective analysis of actual agreements. He concluded that workers on statutory individual employment agreements known as Australian Workplace Agreements (AWAs) are generally paid less than comparable workers on union-negotiated agreements (Stewart 2005,. Meanwhile, the number of awas approved by the Office of the Employment Advocate (oea which was created largely for this purpose, has proceeded apace. From a modest start of 5000 as at December 1997, by july 2005 the number of approved awas has grown to 709,000 covering 13,700 employers, and with an annual average growth rate of over 39 per cent (oea 2005,.
Industrial presentation relations has been a source of frenetic legislative activity for the howard government since it implemented the. Workplace relations Act (WRA) in 1996. The wra has been amended significantly at least seventeen times. The government has tried unsuccessfully to further amend the wra by introducing at least 25 bills; with an additional seven bills currently before parliament. In all, since 1996, about 50 separate attempts have been made to change the wra. One thing has been clear throughout. The governments legislative initiatives have been aimed squarely at excluding trade unions from the workplace, by encouraging employers to impose individualised employment agreements instead of collective bargaining and industrial award-making.
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Vakansiyalar, responsibilities: Requirements: Contacts. Symposium: State systems of Industrial Relations. On the Prime minister of Australia announced the federal governments intention to use its formal Senate majority to implement what he called an historic modernisation of Australias workplace relations system (Howard 2005). Industrial relations has been a source of frenetic legislative activity for the howard government. The trade union movement, business interests and various commentators in the media reacted in a storm reviews of controversy and speculation about the shape and implications of the governments industrial relations plan. Is it a radical revolution designed to cut costs and raise profits by undermining employees working conditions? Or is it merely an evolutionary step in achieving a simpler, more flexible and productive relationship between employees and employers (Robb 2005)?