The recent introduction of the Work Choices legislation (1) has brought about the greatest single change to Australian federal labour law since the introduction of compulsory conciliation and arbitration. (2) In particular, Work Choices marks the largest departure yet from Australia's reliance on compulsory conciliation and arbitration as a means of settling industrial disputes, and as a means of setting minimum working conditions. Not so long ago, Braham Dabscheck (2001) wrote of the 'slow and agonizing death' of Australia's 'experiment with conciliation and arbitration'. (3) Work Choices has certainly not reversed that process, but neither has it brought it to a conclusion. Neither conciliation and arbitration, nor the awards that have been their product, has been completely killed off. The impact of Work Choices on federal conciliation and arbitration is however central to this paper, the purpose of which is to consider how minimum working conditions will be set in Australian federal labour law after Work Choices comes into effect. In doing so, I compare the new provisions with the way that minimum working conditions have previously been set, and in particular the changes since the early 1990s to legislative policy in this respect.
In introducing Work Choices, the government promoted the package as one that would give Australia a 'simpler, fairer and national' system of industrial relations. (4) Notwithstanding the stated goal of simplification, the changes are very complex. Ironically, one of the reasons for that complexity is that the goal of creating a national system is being pursued by the commonwealth government without cooperation from any of the states. Because Work Choices represents a hostile federal takeover, it includes numerous and intricate provisions on the detail of how workplace relations arrangements devised under state systems will come into the new federal system. Given the complexity of the new system, it is valuable to give a brief precis of it before considering any of its elements in detail.
Work Choices' will largely end the role of awards as the instruments by which minimum working conditions are set and maintained; because of the federal takeover, this will be true for both federal and state awards. Although federal awards will continue to have a limited role, it will be possible to displace almost all award conditions entirely by making either an individual or a collective workplace agreement. (5)
Minimum working conditions will instead be found in an Australian Fair Pay and Conditions Standard (AFPCS), which will include provisions on wages, hours, and three types of leave: annual, parental, and personal/ carer's leave. For those working in award classifications above the minimum, wages will be regulated by an Australian Pay and Classification Scale (APCS). The newly-created Australian Fair Pay Commission (AFPC) will superintend the content of each APCS, and the wage level that is to be paid under the AFPCS. In dealing with any APCS, the AFPC will be required to consider the work of an Award Review Taskforce (ART). The Australian Industrial Relations Commission (AIRC) will have no power to set the minimum working conditions that will appear in the AFPCS, or in any APCS. Moreover it will have only a strictly limited power to create any new award. The AIRC will, however, have a limited role in relation to the continuing function of awards: it will principally be responsible for implementing processes of further award rationalisation and award simplification. (6) The AIRC will also have power to vary remaining awards as part of maintaining safety net conditions, other than on the subjects that will be set in the AFPCS, or in an APCS. Any state and territory award or law setting wages will effectively be deemed an APCS. The AFPC, however, will carry out a review of all APCSs, and in particular will be responsible for eliminating distinctions based on application to a state or a territory. …