Introduction
The Workplace relations Amendment Act 2005 is one of the landmark legislations within the Australian industrial relation sector for over one hundred years now. It was passed in 2005 and implemented in 2006. The purpose of the bill was to make sure that workers could secure their jobs; this would serve as a platform for economic progress within Australia. But the legislation has not received complete acceptance after implementation. The reform meant that workers engaging in strikes would have to deal with severe consequences. It also facilitated more individual agreements and less collective bargaining by employees. (Parliament of Australia, 2006)
The bill has caused strong reactions from numerous stakeholders. A substantial number of employer association affirmed their support for the Bill. However, there are also some trade unions and labor associations that strongly campaigned against the Act. Some of these groups oppose the way the Bill was passed in parliament; they feel that most of them were not adequately informed about it. These arguments were brought forward by opposition members of parliament who argued that members of the Liberal National Coalition did not give the Bill enough time. However, there are intentions to change many parts of the Work Choices legislation as asserted by Prime Minister Kevin Rudd. He represents the Labor party which may have won the election due to this issue.
Arguments against the legislation
How the legislation was passed
Numerous opposition parliamentarians were opposed to the legislation. This affected the way the matter was handled in parliament. These opposition members; who represented the Labor party, claimed that there were inadequate copies of the Bill. Consequently, they took part in numerous campaigns against the Bill on the day it was introduced. Matters became more heated when parliamentarians were required to question the Bill; Labor party members were seen interrupting remarks made by proponents of the Bill and a substantial number had to be removed from the House. (Hannon, 2008)
Opposition members also cited the fact that there was very little time to internalize matters within the Bill. First of all, the Bill was introduced in into parliament on 2nd November 2005. It was then taken to the House of Representatives and the Senate on 2nd November. This was quite a hurried arrangement. As if that was not enough, the Bill was passed exactly a month after it had been introduced. Minister at that time argued that the hurried response was to avoid introduction of the legislation during an election year. However, this undermined the need for consensus. In order for pieces of legislation to gain acceptance by the public, they need to be thoroughly scrutinized. When this is not done effectively, some problems may arise in the future especially during implementation.
The role of the Australian Industrial Relations Commission (AIRC)
The AIRC has been in charge of unfair dismissals and terminations too. However, the enactment of the Work Choices legislation has reduced their efforts in this regard. For example, employees who wish to make a claim to the Commission about unfair dismissals are expected to do so within a period of twenty one days fork the time their employment was terminated. This means that employees are placed at a disadvantage because twenty one days are not enough. In light of this, the legislation places more power in the hands of the employer rather than the employee since most of them may not be bale to meet this new deadline.
The Australian Industrial Relations Commission is expected to approve extensions of claim periods. However, it has been shown that most of the time, these extensions are rarely granted. Part of the reason for this could be that there is a fee for application and most employees may not be able to afford this. Another reason for this observation could be the long procedures that employees have to pass through before they are granted extensions. The Work Relations Amendment has created long procedures; first unfair dismissal cases or unfair termination cases must go through a first hearing. Thereafter there must be a conciliation conference by the Commission. This is then followed by arbitration in case conciliation fails or a Federal Court. The latter applies to cases dealing with unlawful termination while the former applies to unlawful dismissal. By making the judgment process longer, the Work Choices Act has made it more difficult for employees to seek justice. (Commonwealth of Australia, 2005)
Unfair dismissals and unfair terminations
It should be noted that the Work relations Act changed the level of protection of unfair dismissals. In the past, this task was left to industrial commissions within federal states. It was also supposed to be conducted through Awards. However, after enactment of the legislation, there was less protection of unfair dismissals. Consequently, there was less job security for employees. Employers now have the upper hand as the Act favors them. Some critics have asserted that employers do not have to worry about the problems that come with industrial action since they are protected and they can deal with the profit making aspect of their business. However, this is something that does not consider facts on the ground. Employees in Australia need more support from their labor laws rather than more harassment. In effect, the Work place legislation Act is encouraging less participation in labor by employees. This is worsening Australia’s image in the international world. (Hannon, 2008)
The Work Choices Act also has introduced too many prerequisites in the definition of what an unfair dismissal is. This means that employees seeking justice on unfair dismissal terms must meet certain preconditions. First of all, they are required to be working for a company that has over one hundred employees under its wing. Additionally, employees should have worked for their companies for a period greater than six months. Employees are exempted from protection against unfair dismissals in cases where they are working under a contract. They are also exempted if;
-they work seasonally
-they are short term employees/ casual
-they are on probation
-they are working one project
-they are trainees
-they are not under a workplace agreement
-they get more than one hundred and one thousand, three hundred dollars annually
In light of these exclusions, some employees have been kept at a big disadvantage. This has been witnessed in certain cases presided over by the Court. In Andrew Cruickshank v Price line Pty, Cruickshank was a former employee of the Price line Company earning a salary of One hundred and one thousand dollars annually. The Company decided to terminate his employment and hired someone else who was earning sixty five thousand dollars per year. Because of the significant differences in age costs to the employer, the Company argued that they terminated the plaintiff because he proved to be too expensive for the company and that they needed to save money. Consequently, they opted for an employee who did not require too much in terms of earnings. They also argued that they were protected by the unfair dismissals Act since saving on costs is considered as an economic reason. (The Act contains provisions that allow businesses to terminate employment contracts if the do so for ‘genuine operational reasons’ such as technological, structural and economic reasons) (Hannon, 2008)
Unlawful terminations are also covered in the Act. Employers are expected to give notices to their employees whenever there will be a termination. There should be notice to a workplace relations body called Centre link in case the number of employees to be considered for termination exceeds fifteen. It should however be noted that the same problem facing employees under unfair dismissals is still prevalent under unfair termination. This is because the Act still exempts certain individuals such a casual laborers.
No disadvantage test in agreements
The Work Choices of 20005 eliminated a very crucial part of the workplace relations Act that existed prior to that; the Work relations Act of 1996. According to that Act, workers were expected to make use of a No disadvantage test in their workplace agreements. This test meant that employees should weigh proposed agreements against the backdrop of an award related to the agreements. If the agreement met the standards of the Award, then the employee was ‘ not at a disadvantage’ and could proceed with his employment contract. However the introduction of the Work choices Act 2005 has scrapped that off yet this used to protect employees against five major infringements. The five entitlements before enactment of the legislation were
These five components were part of the Australian Fair Play and Conditions Standard. Numerous criticisms have arisen as a result of the elimination of this issue. Although proponents of the Work Choices Act 2005 argue that the Standard was too complicated and only gave employers difficulty in the administration of their business. However, these arguments are one sided. By eliminating the standard and reducing the burden from the employer, the government is transferring this burden to the employee. It makes them subject to exploitation from their employers and also allows then to have the upper hand in workplace agreements.
Processes for unionizing members or making certified agreements
Before enactment of the legislation, the process for joining a trade union or any other form of collective agreement was rather lengthy. Employees were required to give their certified agreements to the Australian Industrial Relations Commission. The same procedure also applied to agreements made collectively between employees and employers. However, after the legislation, there was creation of a new body called Workplace Authority. Since it was charged with this particular responsibility, it makes the process of negotiating for a collective agreement faster than it was previously.
Despite this shorter time span, one should not assume that the Act will provide room for fair play. Numerous Unions and other opponents of the Work Choices Act have asserted that there is less time to analyze the collective agreements by trade Unions in order to iron out any discrepancies or to seal some loopholes that may come out in the future. Consequently, employees who may have unfairly drafted agreements do not have the opportunity to rectify this at all. (Creighton, 2007)
Arguments for the legislation
Better workplace agreements
The workplace relations Act was introduced with the main purpose of making bargaining processes within the workplace friendlier to the employee and the employer. This can be achieved though a number of ways; First of all, the Act requires that when employers and employees are faced with a dispute, no industrial action should be taken within the life of their agreements. Consequently, parties have to look for other methods of solving disputes other than taking industrial action for as long as the agreement if valid.
The Act also allows for a cooling off period for parties that may be in dispute. A cooling off period is a time given to negotiators within disputes to settle down and refocus on their original objectives. The piece of legislation is quite helpful to parties involved in a dispute because they can have time to question their approach and possibly reach a solution that will be fair to both negotiators. In the past, this was not something that could be achieved easily. The body in charge of industrial relations – The Australian Industrial Relations Commission – did not have the mandate to do this especially when a dispute was prolonged. (Government of Australia, 2005)
However, with the introduction of Act, parties are given some time off the dispute in order to refocus and to come up with amicable solutions. The Act contains regulations about how this can be achieved. The Commission is responsible for deciding when a cooling off period is necessary and for how long it will last. However, there is an opportunity for parties to negotiate an expansion of the cooling off period whenever they feel dissatisfied with what the Commission has chosen. The expansion can only be done once by the Commission and one must ensure that they give sound reasons for this to occur. Additionally, there is room for mediation by the Commission during the period of cooling off.
Protecting third parties
The Act also protects third parties within industrial disputes. Third parties in this case refer to all persons who may affected negatively by an industrial action. Some of these groups may include;
Before enactment of the legislation, third parties could not apply for suspension of a certain industrial dispute even when they were severely impaired or affected by the process. Power was left in the hands of the Minister, the Commission or one of the negotiating parties. However the Work Choices Act now allows third parties to request for suspension of the bargaining period for as long as they give due notice to the Commission. This may also be extended whenever a third party feels the need to have longer suspension periods. The Commission is required to take account of some crucial factors before approval. First of all, they nee to make sure that the industrial dispute also affects other people other than the party applying for an extension or the negotiators involved in the dispute. Secondly, the Commission needs to assert that they give conciliation opportunities for the direct parties involved in order to work towards a solution during the period of suspension.
The purpose of such a provision is to ensure that all parties affected by the dispute are protected even when some of them were not directly involved in the dispute. The regulations put in place before suspension of negotiations have been put in place in order to ensure that conditions do not just favor third parties but also protect employees. (Government of Australia, 2005)
Institution of genuine agreements
Before enactment of the Work relations Amendment Act 2005, industrial disputes could be negotiated by a range of employees. This could even apply to a whole industry. The main disadvantage with this is that little room is left for genuine negotiations. Most employees will settle for agreements that may not necessarily indicate what they need at a certain moment. This is also not favorable to employers who may have to deal with matters that they did not agree with nor had control over. In light of these facts, it was necessary to introduce a piece of legislation that allows for genuine agreements. The Work Choices Act is based on the belief that only specific parties have the capacity to understand their specific situation and they are the ones who need to bargain for positions.
Therefore agreements made by different types of employees who may not belong to the same institution are not necessarily fair to employers and employees because they are not genuine. These collective agreements are considered unprotected according to the Workplace relations Act 2005. The issue of collective bargaining also applies to employers in that industrial action will only be considered protected when employers are independent of one another. Employers are not allowed to conduct industrial agreements under an umbrella body. They are expected to work independently. (Commonwealth of Australia, 2005)
Judgment on which argument is most valid
The Workplace relations Amendment Act is an unfair piece of legislations as put forward by the opponents to the Act.
Australia is part of the OECD. Most of the countries in the OECD try to achieve some sort of balance within their workplace relations. This means that most of their labor force is allowed to participate directly in workplace relations. Some of these countries include the United States, The United Kingdom, Canada, Norway, Germany and France. A Survey conducted by ABS indicated that there are about twenty five percent of part time workers in the OECD countries. But in Australia, this number is significantly higher; there are forty six percent part timers. This percent is mostly comprised of women. The reasons for this high percent include the taxation of secondary family providers, inadequate parental leave, lack of childcare subsidies and paid leaves. The above incentives were scrapped of by the Work Choices Act.
According to international standards, Australia still lags behind when it comes to the issue of supporting workers. It was ranked the seventeenth among twenty countries chosen for the survey. This is amplified by the fact that the Work Choices Act has not made it compulsory for employers to give paid leave to their employees. Analysts have asserted that Australia has an inferior policy in the workplace issue. Consequently, this discourages more participation by individuals into the labor force. These same analysts have also stated that Australia has become exceptional with regard to its low standards. (Creighton, 2007)
This is indicated by the fact that the numbers of employees who fall in the casual sector are a whooping twenty two six percent. Ten years ago, this was only twenty two percent. What this means is that the workplace legislations currently in place does not encourage greater participation. They are also haphazard and are ranked among the worst in the developed countries. In Australia, casual labor prevents employees from accessing promotions, long term benefits and development within their areas of employment according to the Act. As it has been seen from earlier parts of the essay, most parts of the Workplace relations Act 2005 exclude employees with casual arrangements. This undermines their rights and prevents some would- be employees from seeking jobs since they are aware that legislations currently in place do not favor them.
Results from the legislation
Because of the numerous campaigns against the Workplace relations Act 2005, The Workplace Authority decided to conduct a survey I order to asses some of the effects of this legislation and it found that there are very few benefits that came from it. The overall effect is the infringement of worker’s rights. These ere some of the findings in the year 2006; (Hannon, 2008)
Protected conditions lost after the Work Choices Act
Percentage of respondents
Abolition of overtime rates or modification of those rates
88%
Abolition or modification of shift systems within companies
89%
Modification or abolition of monetary allowances
91%
Abolition or modification of incentive payments
85%
Wage increases
66%
Modification or abolition of rest breaks
83%
Abolition or modification of holiday payments
82%
The figures speak for themselves. The only positive outcome for employees it that sixty six percent of respondents decided to increase their wages. However, all other favorable working condition were either abolished or modified to their disadvantage. Consequently, the Workplace Relations Act has added insult to injury and is a sign of retrogression within the Australian workplace systems.
Conclusion
Some of the proponents for the Act claim that it will provide better opportunities for the unemployed and creates incentives for businesses to develop. However, after examining the arguments against the legislation and verifying this with figures on the outcomes of the legislation, it can be seen clearly that the Workplace Relations Amendment Act is a step backwards in the Australian workplace relations history and will only undermine worker’s efforts.
Reference:
Parliament of Australia (2006): Work Place Relations Amendment (Work Choices) Bill 2005; retrieved from http://www.aph.gov.au/ , accessed on 7 May 2008
Government of Australia (2005): Workplace Relations Amendment (Better bargaining) Bill 2005: Second reading Speech, retrieved from http://www.workplace.gov.au/NR/rdonlyres/AE6FD5DB-F922-4EA4-ABB5-D7F9F5A85008/0/wrabbbill20052rs.pdf, accessed on 7 May 2008
Creighton, B. (2007): One Hundred Years of the Conciliation and Arbitration Power: A Province Lost? Melbourne University Law Review
Commonwealth of Australia (2005): Parliamentary Debates; House of Representatives- Official Hansard, No. 18, Vol. 3
Hannon, K. (2008): Bell tolls for Howard’s Work Choices; The Canberra Times, 12 March 2008