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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF REPRESENTATIVES
WORKPLACE
RELATIONS AMENDMENT
(AWARD SIMPLIFICATION) BILL
2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for
Employment and Workplace Relations
the Honourable Tony Abbott
MP)
WORKPLACE RELATIONS AMENDMENT
(AWARD
SIMPLIFICATION) BILL 2002
OUTLINE
This Bill proposes amendments to the
Workplace Relations Act 1996 (the WR Act) by limiting and clarifying the
allowable award matters and making related changes to the award making powers of
the Australian Industrial Relations Commission (Commission).
The Bill
proposes to simplify the allowable award matters by:
• removing
various items from the list of allowable award matters;
• tightening
the scope of some existing allowable matters; and
• making explicit
various matters which are not within the scope of allowable award
matters.
The Bill proposes to clarify the following aspects of award
making:
• provisions incidental to an award may only be included in
an award where they are essential for the operation of that
award;
• provisions which facilitate agreement making in the workplace
are allowable award matters; and
• machinery provisions, for example
the commencement date of awards, are allowable matters.
The Bill proposes
that exceptional matters orders only be made by a Full Bench of the
Commission.
The Bill also proposes transitional arrangements which
require the Commission to review all awards within a period of 12 months to
ascertain whether they contain provisions that may no longer be included as
allowable award matters due to the amendments contained in the Bill. At the end
of the 12 month review period, any provision in an award which is no longer an
allowable matter due to the amendments proposed in the Bill will cease to have
effect.
FINANCIAL IMPACT STATEMENT
The
proposals contained in the Bill are budget neutral.
REGULATION IMPACT STATEMENT
Analysis of Key
Elements of the Bill
Background
One of the primary
objectives of the WROLA Act was to reinforce the primacy of workplace
agreement-making in the federal workplace relations system. To achieve this
objective, it was necessary to amend provisions of the WR Act dealing with
awards as well as those dealing with agreement-making. The purpose of the
amendments to the awards provisions was to fundamentally refocus the role of
award system as a safety net of minimum wages and conditions of employment that
would not operate as a disincentive to agreement-making. The relevant
amendments made by the WROLA Act:
• inserted new objects into Part
VI of the WR Act to reflect the safety net role envisaged for awards and the
role of the Commission in maintaining the safety net (section 88A of the WR
Act);
• specified the matters to which the Commission must have
regard in ensuring that a safety net of fair minimum wages and conditions of
employment is established and maintained (section 88B);
• limited
the matters in relation to which the Commission could exercise arbitration
powers to 20 'allowable award
matters'[1] (set out in section 89A of
the Act) [2] and provided for existing
awards to be simplified so as to provide only for allowable award matters (Part
2 of Schedule 5 to the WROLA Act);
• precluded the Commission from
dealing with industrial disputes in relation to employees whose wages and
conditions of employment are governed by a State award or employment agreement
except where ceasing to deal with such a dispute would not be in the public
interest (section 111AAA of the WR Act); and
• provided for State
awards and certain forms of State agreements to displace federal awards (section
152).
Award simplification
The approach taken by the Commission to
the application of section 89A of the WR Act and Part 2 of Schedule 5 to the
WROLA Act for the purposes of simplifying awards has, in many instances,
resulted in awards continuing to contain provisions that are outside the
intended scope of the allowable award matters. As a consequence, many awards
continue to contain unnecessary detail and administrative regulation (for
example, provisions regulating the transfer of employees between work
locations), provisions that hinder productivity and the efficient performance of
work (for example provisions prescribing the proportion or number of employees
that may be engaged in particular job classifications) and regulate matters that
are more appropriately dealt with at the workplace level (for example, education
and training).
There are also concerns that the allowable award matters
include matters in relation to which award regulation is unnecessary because
they are provided for in federal or State legislation. These include, for
example, notice of termination of employment and long service leave.
Where matters are the subject of both statutory and award regulation,
employers can be confronted with complex and confusing compliance requirements.
It is not always clear to employers which set of requirements apply, and in some
cases, obligations will differ across a workplace. For example, the employment
of some employees in a workplace may be regulated by an award which includes
long service leave provisions, while the employment of other employees in the
same workplace may be award-free or be covered by an award that includes
different entitlements or does not include long service leave provisions.
Only 182 Awards were simplified or set aside through award
simplification in the 18 month interim period under the WROLA Act. Since then
2,422 awards have been simplified or set aside with 376 currently being
simplified.
Options
Option 1: Status
Quo
Option 2: Amend the WR Act
Amend the WR
Act to ensure that awards operate as intended as a genuine safety net of basic
minimum wages and conditions by:
• reducing the scope of the
allowable award matters by amending subsection 89A(2) of the WR Act to
exclude:
- skill based career paths;
- bonuses
- long service
leave;
- notice of termination;
- jury service.
• clarifying
the scope of the remaining allowable matters to ensure that they operate as
intended, for example:
- 'cultural leave' covers only ceremonial leave
for Aboriginal and Torres Strait Islanders and other similar types of cultural
or religious obligations;
- 'allowances' covers only the reimbursement of
expenses incurred in the course of employment, and allowances for skills not
taken into account in the employee’s rate of pay or for disabilities
associated with the performance of particular tasks, or work in particular
conditions or locations;
- “redundancy pay” only covers
genuine redundancy and not to custom and practice that arises in certain
industries.
- 'public holidays' covers only gazetted public holidays
observed generally throughout the community and not days such as union picnic
days; and
- provisions dealing with training and education, accident make
up pay, union picnic days, quotas on particular types of employment, dispute
settling procedures that do not allow for freedom of choice in representation or
maximum or minimum hours of work for regular part-time employees are not
included in awards.
• limiting the application of
subsection 89A(6) to ensure that only those provisions that are incidental to an
allowable award matter provided for in the award and ‘essential for the
purpose of making a particular provision operate in a practical way’ may
be included in awards;
• accelerating the progress of award
simplification, by providing for a 12-month interim period before non-allowable
matters cease to have effect (compared with the provision of an 18 month period
under the 1996 legislation); and
• ensuring that all
exceptional matters orders must be made by Full bench of the Australian
Industrial Relations Commission.
Parties’ views
The
Australian Chamber of Commerce and Industry consider that despite the 1996
workplace relations reform package, there are still further challenges including
that the system continues to be unduly complicated and prescriptive and that the
award system continues to have too great a role vis-à-vis agreements.
Impact Analysis
Option 1: Status
Quo
Costs
Awards containing unnecessary detail and
administrative regulation (for example, provisions regulating the transfer of
employees between work locations), provisions that hinder productivity and the
efficient performance of work (for example provisions prescribing the proportion
or number of employees that may engaged in particular job classifications) and
provisions that regulate matters that are more appropriately dealt with at the
workplace level (for example, education and training) impose costs on businesses
in terms of productivity and unnecessary regulation.
Federal awards that
require employers to compensate their employees for pay lost whilst undertaking
jury service can impose significant burdens on employers. The precise cost
impact will vary according to the jurisdiction in which jury service is
performed, the employee's rate of pay and the duration of jury service.
Payment arrangements for jury service vary substantially between
jurisdictions. Some jurisdictions provide for payment of compensation in
respect of lost wages in addition to daily rates, but these amounts are capped.
Other jurisdictions make no provision for compensation for lost wages, but
generally provide for higher daily payments than those jurisdictions that
provide for compensation for lost wages. For example, if a tradesperson whose
employment is regulated by the Metal, Engineering and Associated Industries
Award 1998 and is paid $477.20 per week performs jury service for 10 days,
there are two jurisdictions in which payments made by the State would fully meet
the employee's ordinary award wages. In all other jurisdictions, the employee's
employer would be required to make some payment, varying across jurisdictions,
to top up the employee's jury payments so that the employee continues to receive
an amount equivalent to his or her ordinary award wages.
Employers would
be liable to meet higher costs where an employee performs jury service in a long
trial and where it is necessary for the employer to engage a replacement
employee during the absence of the employee performing jury service. These
costs can impose a disproportionate burden on small businesses as it is more
difficult for them to absorb unanticipated costs and to cover the absence of an
employee without engaging a replacement. Small businesses will often need to
meet the cost of engaging a replacement employee as well as make up pay for the
employee performing jury service, while larger businesses may have greater
flexibility to cover an absence.
The regulation of employment conditions
through both award provisions and legislation is complex and confusing and
creates an unnecessary administrative burden for employers.
The slow
progress of the award simplification process has meant that some awards still
have not been varied to remove 'non-allowable' matters, unnecessary detail and
provisions that hinder productivity and the efficient performance of work.
Whilst non-allowable matters are of no
effect[3], their retention can be
confusing for award parties who may be uncertain about their rights and
obligations. The continued operation of provisions that come within the scope
of the allowable matters but contain unnecessary detail or hinder productivity
and the efficient performance of work impose additional compliance costs and
unnecessary costs incurred because potential productivity gains have been
prevented by restrictive award provisions.
Benefits
The
primary benefits of the existing arrangements are that, compared with the
previous legislation, (including previous measures to modernise awards), the
reforms introduced by the WROLA Act have resulted in the simplification of
number of key awards and have contributed towards refocussing the award system
as a safety net that does not act as a disincentive to
bargaining.
Option 2: Amend the WR
Act
Costs
The amendments relating to the allowable
award matters will require the review of almost all federal
awards[4]. The parties (ie unions,
employers and employer organisations) to awards that are to be simplified will
be required to devote resources to that task and, where necessary, to
participation in review proceedings in the Commission. The Commission will be
required to vary awards to bring them into line with the allowable award
matters. In addition to those awards not yet simplified, the Commission's award
simplification function currently being undertaken under Schedule 5 to the WROLA
Act would continue pursuant to the WR Act as amended.
It is relevant to
note that there will be substantially fewer awards in place when the new
simplification process commences than was the case at the commencement of the
WROLA Act process, so the overall size of the task will be smaller. As at 30
September 2002, there were
2,156 current awards. At the commencement of the
WROLA Act process there were 3 253 awards in place.
Some employers may
incur additional costs as a result of obligations that arise under
State/Territory long service leave legislation. The impact of the removal of
long service leave from federal awards will depend on the terms of the relevant
award provisions, the legislation that would apply in place of award obligations
and the extent to which long service leave entitlements are provided for by way
of agreements.
The removal of jury service from the allowable award
matters may require State and Territory Governments to meet additional costs in
connection with jury service. As noted above, payment arrangements for jury
service vary substantially between jurisdictions. Any decisions about whether
existing State/Territory arrangements should be changed to take into account the
fact federal awards would no longer require employers to provide 'make-up' pay
for employees engaged in jury service are matters for States and Territory
Governments.
Benefits
The benefits of option 2 are that:
• the award safety net would not impede workplace efficiency or
organisational effectiveness by imposing industry-wide obligations that do not
meet the different needs of individual workplaces;
• award
provisions would not duplicate matters that are dealt with in legislation, thus
eliminating confusion that duplicate statutory and award provisions can create
for employers and employees at the workplace level;
• employers
will benefit from being relieved of award obligations to meet costs associated
with jury service which are more appropriately the responsibility of the
relevant judicial systems;
• by providing for a 12 month
transitional period to bring existing awards into line with the revised
allowable matters and award simplification criteria, the productivity benefits
and cost savings are made available to workplaces more quickly than was the case
under the 18 month transitional period that applied under the WROLA Act;
and
• employers and employees will have greater freedom of choice
as to the form of regulation that is most appropriate to their
needs.
Conclusion and Recommended Option
Option 2 further
focuses awards on their role as a safety net to protect the low paid. In this
way, awards will provide a safety net that does not create a disincentive to
agreement making, and in doing so, will ensure that agreement-making remains the
primary focus of the federal workplace relations system.
Whilst the
further award simplification measures in option 2 will require award parties and
the Commission to devote resources to reviewing and varying almost all federal
awards, the further simplification of awards provides for more flexibility in
workplace regulation and less prescription in awards than the existing
arrangements, thus providing a basis for increased productivity and reduced
costs for businesses.
Although the removal of additional matters from
the scope of the allowable award matters will reduce award regulation, it is
open to employers and employees to make other arrangements in respect of those
matters where it is appropriate to the needs of their particular workplaces to
do so. In some instances, parties might choose to provide for particular
matters by way of agreement and some others matters might be dealt with by way
of policies and procedures at the workplace.
Under option 2, parties
will continue to be able to seek award regulation in respect of non-allowable
matters where the matters involved are exceptional and a harsh or unjust outcome
would result from the exclusion of award regulation. In this way, option 2
strikes an appropriate balance between reducing award regulation generally and
providing additional regulation where necessary in the public
interest.
Option 2 provides for a 12 month transitional period to bring
existing awards into line with the revised allowable matters and award
simplification criteria compared with an 18 month transitional period that
applied under the WROLA Act. This will allow sufficient time for an orderly
transition to the new arrangements without unduly delaying access to the
productivity benefits and cost savings that may be achieved through simplified
awards.
NOTES ON CLAUSES
Clause 1 - Short
title
1. This is a formal provision specifying the short title
of the Act.
Clause 2 - Commencement
2. This
clause specifies when the various provisions of the Act are proposed to
commence. Sections 1 to 3 and anything in the Act not elsewhere covered by the
table will commence on the day on which the Act receives the Royal Assent. The
amendments set out in Schedule 1 will commence on a single day to be fixed by
proclamation, subject to subsection (3).
3. Clause 2 has the effect that
if an item in the table is not proclaimed to commence within six months of the
Act receiving Royal Assent, it will commence on the day following that period of
six months.
Clause 3 – Schedule(s)
4. This clause
provides that an Act that is specified in a Schedule is amended or repealed as
set out in that Schedule, and any other item in a Schedule operates according to
its terms.
SCHEDULE 1 - AWARD SIMPLIFICATION
1.1 This Schedule proposes
amendments to Part VI of the Workplace Relations Act 1996 (the WR Act),
which are directed towards ensuring that awards act as a safety net of basic
minimum wages and conditions of employment in respect of appropriate allowable
award matters.
1.2 The proposed amendments provide for further
simplification of awards.
Part 1 -
Amendments
Workplace Relations Act
1996
Item 1 - Paragraph 89A(2)(a)
1.3 This
item proposes would remove ‘skill based career paths’ from the
allowable award matters. These matters are more appropriately dealt with at the
enterprise or workplace level and, if regulation by an industrial instrument is
necessary, by a certified agreement or an Australian Workplace
Agreement.
Item 2 - Paragraph 89A(2)(d)
1.4 This item would
remove ‘bonuses’ from the allowable award matters. These matters
are more appropriately dealt with at the enterprise or workplace level and, if
regulation by an industrial instrument is necessary, by a certified agreement or
an Australian Workplace Agreement. ‘Piece rates’ would be retained
in the list of allowable matters to allow the Commission to include clauses
relating to piece rates in awards.
Item 3 - Paragraph
89A(2)(f)
1.5 This item would remove ‘long service leave’
from the allowable award matters. Minimum standards of long service leave would
be regulated by State or Territory legislation.
Item 4 - Paragraph
89A(2)(g)
1.6 This item would omit ‘cultural leave’ from
paragraph 89A(2)(g) and ‘other like
forms of leave’ from the
allowable award matters. The capacity to include in an award provision
for
certain forms of cultural leave is provided for in proposed paragraph 89A(2)(ga)
[Item 5 of this Schedule].
Item 5 - After paragraph
89A(2)(g)
Proposed new paragraph
89A(2)(ga) would include in the allowable award matters leave for Aboriginal and
Torres Strait Islander people to meet ceremonial obligations and leave for other
cultural or religious obligations of a similar nature.
Item 6 -
Paragraph 89A(2)(i)
1.7 This item would repeal paragraph 89A(2)(i)
and replace it with a new provision that further limits the scope of the
Commission’s powers under subsection 89A(1) in respect of public holidays.
Proposed paragraph 89A(2)(i) would limit the Commission’s powers to
include in an award provisions dealing with:
• the observance of
days declared by State or Territory Governments to be observed as public
holidays generally within the State or Territory or region of the State or
Territory concerned by employees who work in the relevant State, Territory or
region; and
• the entitlements of employees paid in respect of those
days.
1.8 Proposed paragraph 89A(2)(i) would preclude the Commission from
including in awards
provisions that treat particular days as public holidays
in addition to those declared by State and Territory Governments to be observed
generally in the relevant community as public holidays.
This means that an
award could not include as public holidays additional days which may be or may
have been treated as ‘extra’ public holidays in a particular
industry.
1.9 Proposed paragraph 89A(2)(i) is not intended to preclude an
award from providing for the substitution of different days to be observed as
public holidays or from providing for arrangements to be made at the workplace
or enterprise level for the substitution of different days to be observed as
public holidays.
Item 7 - Paragraph 89A(2)(j)
1.10 This
item would replace existing paragraph 89A(2)(j) (which includes
‘allowances’ as an allowable matter) with a new provision limiting
the type of allowances that may be included in an award to monetary allowances
payable to employees for expenses incurred in the course of their employment,
particular responsibilities or skills that are not taken into account in the
employee’s rate of pay or for disabilities associated with the performance
of particular tasks (for example, handling hazardous materials, or work in
particular conditions or locations, for example remote
locations).
Item 8 - Paragraph 89A(2)(m)
1.11 Existing
paragraph 89A(2)(m) allows awards to provide for redundancy pay. Item 8 would
amend the paragraph to limit the circumstances in which an award may provide for
redundancy pay to circumstances in which an employee’s employment has been
terminated at the initiative of the employer on the grounds of operational
requirements. As is the case with existing paragraph 89A(2)(m), neither new
paragraph 89A(2)(m) nor subsection 89A(6) would operate to allow the inclusion
in awards of provisions which affect the capacity of an employer to determine
the number or identity of persons whose employment is to be terminated for
operational requirements.
Item 9 - Paragraph
89A(2)(n)
1.12 This item would remove ‘notice of
termination’ from the allowable award matters.
Minimum requirements as
to notice of termination at the initiative of the employer are set out in Part
VIA of the Act.
Item 10 - Paragraph 89A(2)(q)
1.13 This
item would remove ‘jury service’ from the allowable award
matters.
Item 11 – After paragraph
89A(2)(s)
1.14 This item proposes to amend subsection 89A(2) to
insert new paragraph 89A(2)(sa). New paragraph 89A(2)(sa) will provide for a
new allowable award matter – ‘bonuses for outworkers’. The
amendment is required because ‘bonuses’ generally are to be deleted
as an allowable award matter (item 2), but are to be retained as an allowable
award matter for outworkers.
Item 12 – Paragraph
89A(2)(t)
1.15 This item proposes consequential amendments to
paragraph 89A(2)(t) to expressly provide that allowable award matter concerns
pay and conditions for outworkers, other than bonuses, which are fair and
reasonable in comparison with the pay and conditions specified in a relevant
award or awards for employees who perform the same kind of work at an
employer’s commercial or business premises.
1.16 The amendments
proposed by items 11 and 12 are designed to ensure that outworkers in the
clothing industry who are paid in accordance with payment by results systems do
not lose access to that mode of remuneration.
Item 13 - At the end of
subsection 89A(3)
1.17 This item would amend subsection 89A(3) by
providing that the Commission’s power to make or vary an award dealing
with the matters in subsection 89A(2) is limited to making minimum rates awards
that provide for basic minimum entitlements. This amendment reinforces the
objects of ensuring that awards act as a safety net of basic minimum wages and
conditions of employment to help address the needs of the low paid, that awards
do not provide for wages and conditions of employment above the safety net and
do not operate as a disincentive to agreement making.
Item 14 - After
subsection 89A(3)
1.18 Proposed new subsection 89A(3A) would clarify
the scope of the allowable award matters set out in subsection 89A(2) by
expressly providing that certain matters are not within the scope of the
allowable matters. However, the range of ‘non-allowable’ matters is
not confined to the matters listed in subsection 89A(3A). The list of matters
set out in proposed new subsection 89A(3A) is simply intended to provide greater
certainty as to the status of the matters listed in that
provision.
1.19 Proposed new paragraph 89A(3A)(a) would provide that
transfers between work locations do not come within the scope of the allowable
award matters. This provision is intended to remove from the scope of awards
provisions such as those setting out conditions applicable to transfers or
selection for transfer from one work location to another. It is not intended to
prevent the inclusion of provisions that permit the transfer of employees to a
work location other than their usual location where the employer is not able to
usefully employ them because of any strike, breakdown of machinery or any
stoppage of work for any cause for which the employer cannot reasonably be held
responsible.
1.20 Proposed new paragraph 89A(3A)(b) would provide that
matters pertaining to training and education, such as participation in training
activities, leave for training or study purposes and fees (except in relation to
leave and allowances for trainees and apprentices) do not come within the scope
of the allowable award matters.
1.21 Proposed new paragraph 89A(3A)(c)
would provide that requirements for the recording of employees’ work times
do not come within the scope of the allowable award matters. Section
353A of
the Act provides for the making of regulations in relation to employment records
which may include records of the hours worked by employees.
1.22 Proposed
new paragraph 89A(3A)(d) would exclude accident make up pay from the scope of
the allowable award matters. Minimum standards applicable to work-related
injuries would continue to be regulated by State or Territory legislation or, in
some cases, by federal legislation.
1.23 Proposed new paragraph
89A(3A)(e) would exclude from the scope of the allowable award matters dispute
settling procedures that provide for an organisation of employers or employees
to participate in, or represent an employer or employee in the whole or part of
the dispute settling process but do not allow the employer or the employee the
right to represent their own interests or to choose a representative other than
a particular organisation or organisations. This limitation is not intended to
exclude organisations from involvement in dispute settling procedures, but
rather to ensure that award-based procedures provide employers and employees
with choice as to representation.
1.24 Proposed new paragraph 89A(3A)(f)
would provide that transfers from one type of employment to another type of
employment do not come within the scope of the allowable award matters.
‘Type of employment’ refers to categories such as full-time
employment, casual employment, regular part-time employment and shift work [see
paragraph 89A(2)(r)]. It is not intended to refer to types of work or duties
(as distinct from types of employment) and would not preclude the inclusion of
award provisions that permit the transfer of employees to different duties where
the employer is not able to usefully employ them to perform their usual duties
because of any strike, breakdown of machinery or any stoppage of work for any
cause for which the employer cannot reasonably be held
responsible.
1.25 Proposed new paragraph 89A(3A)(g) would exclude from
the scope of the allowable award matters the number or proportion of employees
that an employer may employ in a particular type of employment or
classification. This means, for example, that an award is not permitted to
include provisions that impose, or would have the effect of imposing, a limit on
the number of persons that may be employed in a particular type of employment or
classification, whether by imposing a quota on that employment type or
classification or requiring the number of persons (or minimum or maximum number
of persons) in a particular type of employment or classification to be
determined by reference to the number of persons employed in another type of
employment or classification.
1.26 Proposed new paragraph 89A(3A)(h)
would exclude from the scope of the allowable award matters prohibitions
(whether direct or indirect) on an employer employing persons in a particular
type of employment or classification. This limitation is not intended to
preclude an award from including provisions that stipulate that particular
competencies, qualifications or licences must be held in order to perform
certain duties.
1.27 Proposed new paragraph 89A(3A)(i) would exclude from
the scope of the allowable award matters provisions setting maximum or minimum
hours of work for regular part-time employees. This paragraph would have the
same effect as existing paragraph 89A(4)(b).
Item 15 -
Subsection 89A(4)
1.28 This item would repeal subsection 89A(4),
which provides that the Commission’s powers to make an award in relation
to the matters covered by paragraph (2)(r) does not include the power to limit
the number or proportion of employees that an employer may employ in a
particular type of employment or to set minimum or maximum hours of work for
regular part-time employees. These qualifications on the allowable award
matters are to remain in place but would be covered by new paragraphs
89A(3A)(g), 89A(3A)(h) and 89A(3A)(i).
Item 16 - Subsection
89A(5)
1.29 This amendment is consequential upon the repeal of
subsection 89A(4) [item 15 of this
Schedule]. It replaces a reference to
paragraph 89A(4)(b) with a reference to the corresponding new paragraph
89A(3A)(i).
1.30 This item also includes a note to insert a subsection
heading “Other provisions that the Commission may include in an
award” above subsection 89A(5). This will be the heading for subsections
89A(5), 89A(6) and proposed subsection 89A(6A).
Item 17 - Subsection
89A(6)
1.31 This item would amend subsection 89A(6) to limit the
scope of ‘incidental’ provisions that may be included in an award to
those provisions that are essential for the purpose of making particular clauses
relating to allowable matters operate in a practical way. That is, to be
included in an award under this subsection, a provision must be both incidental
to an allowable matter and essential to the operation of a particular award
clause. This provision would allow the Commission to include in awards
provisions that are required to ensure the practical operation of clauses
dealing with allowable matters, but would also ensure the practical operation of
matters is not expanded, thereby recognising that awards should act as a safety
net of basic minimum wages and conditions of employment.
Item 18 -
After subsection 89A(6)
1.32 This item would insert new subsection
89A(6A) to clarify that subsection 89A(2) does not preclude awards from
including machinery provisions such as definitions, arrangements, commencement
date, term and parties bound.
Item 19 - After subsection
89A(8)
1.33 This item would insert new subsection 89A(8A) to make it
clear that subsection 89A(2) does not preclude awards from including provisions
that are allowed by subsection 113A and subsection 143(1C) of the Act, such as
enterprise flexibility and facilitative provisions.
Item 20 -
Subsection 113A(2)
1.34 This item repeals subsection 113A(2) which
will no longer be necessary because of the amendment proposed in Item 19 which
would have the effect of ensuring that the capacity of the Commission to include
enterprise flexibility provisions in an award is not limited by subsection
89A(2).
Item 21 - Subsection 120A(4)
1.35 This item
would amend subsection 120A(4) so that exceptional matters orders may only be
made by a Full Bench of the Commission. At present, a single Commissioner may
make an exceptional matters order that relates to a single business.
Part 2 – Application, transitional and savings provisions
Item 22 - Application of Part 1
1.36 This item proposes
that the amendments made by items 1 to 21 of this Schedule will apply in
relation to an industrial dispute that the Commission began to deal with before
the commencement of those items, or begins to deal with after commencement of
these items.
Item 23 – Transitional provision – review of
awards
1.37 This item requires the Commission to review all awards
within a period of 12 months to ascertain whether they contain provisions that
may no longer be included as allowable award matters due to the amendments to
section 89A made by Part 1 of this Schedule. After considering appropriate
alternatives, the Commission may vary an award to remove those provisions no
longer allowable under section 89A.
1.38 This item provides that the
Commission may review awards for the purposes of this Bill at the same time as
it reviews awards for other purposes.
1.39 This item also provides that
at the end of 12 months after the commencement of this Schedule, any provision
in an award which is no longer an allowable award matter due to the amendments
in this Schedule, will cease to have effect.
1.40 Further, the item
provides that the Commission may vary any award to remove any provision which
has ceased to have effect because the end of the transitional period has been
reached.
[1] The 'allowable
award matters' are:
• classifications of
employees and skill-based career paths;
• ordinary time hours of work and the times
within which they are performed, rest breaks, notice periods and variations to
working hours;
• rates of pay generally (such as
hourly rates and annual salaries), rates of pay for juniors, trainees or
apprentices, and rates of pay for employees under the supported wage
system;
• piece rates, tallies and bonuses
(amended in 2001 to delete ‘tallies’;
• annual leave and leave loadings;
• long service leave;
• personal/carer’s leave, including sick
leave, family leave, bereavement leave, compassionate leave, cultural leave and
other like forms of leave;
• parental leave,
including maternity and adoption leave;
• public
holidays;
• allowances;
• loadings for working overtime or for casual or
shift work;
• penalty rates;
• redundancy pay;
• notice of termination;
• stand-down provisions;
• dispute settling procedures;
• jury service;
• type of employment, such as full-time
employment, casual employment, regular part-time employment and shift work;
• superannuation;
• pay and conditions for outworkers, but only to
the extent necessary to ensure that their overall pay and conditions of
employment are fair and reasonable in comparison with the pay and conditions of
employment specified in a relevant award or awards for employees who perform the
same kind of work at an employer’s business or commercial
premises.
In addition, s.89A(6) permits the Commission to include in an
award provisions that are incidental to the matters in s.89A(2) and necessary
for the effective operation of the award.
[2] There
are some limited exceptions to section 89A, namely 'exceptional matters
orders' - see ss.89A(7) and 120A - and awards made under s.170MX of the WR Act -
see s.170MY(2).
[3] That is,
they cease to have effect at the end of the interim
period.
[4] Awards made under
section 170MX of the WR Act, orders made under section 501 of the Act
andncertain enterprise agreements formalised as consent awards do not require
simplification.