Work Choices in Overview: Big Bang or Slow Burn?

By Stewart, Andrew | The Economic and Labour Relations Review : ELRR, May 2006 | Go to article overview

Work Choices in Overview: Big Bang or Slow Burn?


Stewart, Andrew, The Economic and Labour Relations Review : ELRR


Introduction

In one sense, the Workplace Relations Amendment (Work Choices) Act 2005 can be seen as the culmination of a twenty-year campaign by John Howard and his supporters to re-regulate workplace relations. (1) Frustrated first by Labor's long period in office, and then after coming to power in 1996 by a lack of numbers in the Senate, the unexpected scale of the Coalition's victory at the 2004 election finally delivered an opportunity to rewrite the rules on the Prime Minister's own terms. Unsurprisingly then, the principal thrust of the Work Choices Act is to individualise employment relations and, as a corollary, to reduce the scope for 'third party' intervention by trade unions and industrial tribunals.

Yet at the same time, and for all that some of the changes it introduces are potentially far-reaching in their effect on the determination of employment conditions, the Work Choices Act is not the revolution we might have expected. Not only does it amend rather than replace the Workplace Relations Act 1996 (itself a renamed version of the Hawke Government's Industrial Relations Act 1988), but it retains some of the traditional elements of the old arbitration system. The Australian Industrial Relations Commission survives and there will still be awards--albeit both will have a diminished and increasingly marginalised role to play. Collective bargaining and even industrial action, while hindered in key respects, remain formally recognised.

I will have more to say later on both about the philosophy underlying the Work Choices reforms, and about the government's reasons for not pursuing a programme of more radical and immediate change. Before that, however, I will sketch out the more important elements of the Work Choices amendments, the bulk of which were expected (at least at the time of writing) to be proclaimed to take effect in March 2006.

Three factors complicate any analysis of the legislation. The first is the sheer size and complexity of the Work Choices Act, which in its final form runs to a staggering 762 pages. Far from simplifying the Workplace Relations Act 1996 (or the WR Act as it will be referred to from now on), the amendments have taken what was already an overblown, poorly drafted and needlessly complicated statute (Stewart 2005)--and made it even worse. Large slabs of the amended WR Act are virtually unintelligible to all but the most persistent and expert reader, while the haste with which the legislation was rushed through parliament has meant that areas of uncertainty as to the meaning or effect of certain changes have been overlooked or left unresolved. The legislation also teems with new concepts and acronyms, many of them confusingly (and quite unnecessarily) similar. For instance, 'protected conditions' are not the same as 'preserved award entitlements', though they are similar in effect to 'protected preserved conditions'. It also takes a power of concentration not to mix up the AFPC, the AFPCS and APCSs--that is, the Australian Fair Pay Commission, the Australian Fair Pay and Conditions Standard, and Australian Pay and Classification Scales.

Secondly, the legislative process has by no means ended with the Work Choices Act. The government has foreshadowed the introduction of a further statute to make changes to the regulation of independent contractors (see eg DEWR 2005). This might conceivably allow a worker to be conclusively designated as an independent contractor merely because they agree to be so labelled, which would effectively permit businesses to contract out of most labour regulation (including the bulk of the WR Act) at the stroke of a pen. (2) At the very least, we can expect restrictions to be imposed on the regulation of contract labour under State law, in line with those already imposed (and to be discussed below) in relation to employment laws.

More immediately though, the Work Choices amendments will necessitate a mass of new regulations, not yet released at the date of writing. …

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