Academic journal article The Economic and Labour Relations Review : ELRR

Australian Workplace Agreements under Work Choices

Academic journal article The Economic and Labour Relations Review : ELRR

Australian Workplace Agreements under Work Choices

Article excerpt

Introduction

On 26 May 2005, the Howard government outlined the changes which would be introduced when it gained control of the Senate in July 2005. On 14 December 2005, the Workplace Relations Amendment (Work Choices) Act 2005 gained royal assent (Peetz 2005a: 90). Despite some provisions which came into effect on assent, most of the changes took effect upon proclamation, being 27th March 2006. Importantly, a large part of the detail behind the changes to the Act is contained in regulations--these were made available on 19 March 2006. At the time of writing, it was not possible to digest the more than 700 pages of regulations, however, where their effect is important in terms of agreement-making, this is noted.

This paper focuses on the changes to individual agreement making (Australian Workplace Agreements) which result from the Work Choices amendments. The paper explores how Australian Workplace Agreements (AWAs) are approved, lodged, varied, and terminated. Discussion follows on provisions regulating the content of AWAs, the ability of the parties to negotiate an AWA, the abolition of industrial action and changes to the concept of duress. Finally, remedies for breaches of AWA provisions will be outlined followed by concluding comments.

Prior to the introduction of Australian Workplace Agreements in 1996, there had been no statutory form of individual agreement-making at the Federal level. Since the first AWA was approved in March 1997, this type of agreement has been subject to the highest level of scrutiny, notwithstanding that they are 'secret' agreements. Most research on AWAs to date has found that AWAs provide wages and conditions less than those achieved through collective agreements (Roan et al 2000; Bramble 2001, Cole et al 2001; Whitehouse 2001; Mitchell and Fetter 2003; van Barneveld 2004). However, until Work Choices, the differences between agreement types had been somewhat limited by the application of the same 'nodisadvantage test' as part of the approval process. This test compares the content of a proposed AWA against the relevant award. To be approved, the overall content of the AWA (or collective agreement) must be no less than the award. Available research suggests, that while most collective agreements sit easily above this safety net, AWAs often just scrape through, and are sometimes approved despite falling short of minimum entitlements. One of the most important changes introduced by Work Choices is the replacement of the no-disadvantage test with just five minimum conditions, thereby removing this important, albeit faulty, safety net. *

Some States, such as Western Australia, have already dabbled with the removal of the 'no-disadvantage test'. Subsequent research has found that once this floor is removed, workers on statutory individual contracts fare much worse than those on collective agreements, and many even fall below the minimum provided by the award system (Fells and Mulvey 1994; ACIRRT 1996, 1999; Bailey and Horstman 2000; Plowman and Preston 2005; Baird and Todd 2005).

The question becomes, for statutory agreement-making, why are we heading towards a model which research suggests will widen wage and condition gaps between those on individual agreements and those on collective agreements. The impetus has come from business lobbyists including the Business Council of Australia, the Australian Chamber of Commerce and Industry, and the right-wing think tank, the HR Nicholls Society. These groups have long argued that the most appropriate mechanism to govern the employment relationship is common law (Evans 2005; Moore 2005). To their disappointment, the Work Choices amendments do not abolish statutory agreement-making. This has lead some to voice criticism that the changes do not go far enough. For example, the President of the HR Nicholls Society, just nine days before the Bill gained royal assent, lamented that 'the tragedy is that the Howard Workchoice Act, with minor exceptions, supports regulation and disparages freedom' (Evans 2005: 3). …

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