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At the crossroads: changes to labour laws

Cover Story

Cite as: (2005) 79(11) LIJ, p. 26


Everyone is talking about workplace relations at the moment. Since the release of Workchoices: The New Workplace Relations System on 9 October, the federal government has been busy promoting the benefits of the proposed reforms to Australia’s workplace relations system.

Advertisements on television and in the print media describe the new regime as being simpler, fairer and more flexible for both employers and employees. The government claims the reforms are necessary in order to ensure Australia’s future economic prosperity.

In May 2005, the Prime Minister John Howard outlined the government’s proposals providing practitioners and the public with an overview of the intended reforms. The proposals included:

  • a move towards a national industrial relations system which would rely on the use of the corporations power;
  • establishing the Australian Fair Pay Commission (AFPC) to replace the minimum wage fixing role of the Australian Industrial Relations Commission (AIRC);
  • simplifying the process for making workplace agreements, including the removal of the “no disadvantage” test;
  • setting a new standard for all agreements of four statutory minimum conditions (annual leave, personal/carer’s leave, parental leave and maximum ordinary hours of work) in addition to the minimum wages determined by the AFPC; and
  • unfair dismissal exemptions for all businesses with fewer than 100 employees.

Subsequently, the ACTU produced advertisements warning of the problems that Australian workers would face under the new workplace relations system. The campaign focused on the lack of protection that workers would have against unfair dismissal and the disadvantage that would be suffered by workers who are required to sign individual workplace agreements.

Further, the ACTU together with the Australian Labor Party (ALP) brought proceedings in the High Court of Australia to prevent the federal government from using taxpayer funded advertisements to promote the workplace relations reforms. This challenge was unsuccessful, with the High Court finding there was no basis for a declaration that the advertising spending had not been authorised by Parliament and consequently there had been no breach of the Constitution.

With Workchoices, the federal government has filled in much of the detail of the proposals contained in the government’s announcements earlier this year.

The first article in this Special Issue, by Chris Molnar, examines the reform initiatives contained in Workchoices, including the move to a national system and changes to the role of the AIRC. The article also explores the impact on minimum conditions of employment, agreement making and awards under the new regime.

The federal government’s plan that employers with fewer than 100 employees will be exempt from unfair dismissal claims has been the subject of widespread community debate. Stuart Kollmorgen and Lisa Anaf consider what alternative avenues employees might have in order to seek redress when employment is terminated.

Last year, the federal government introduced the Workplace Relations (Right of Entry) Bill 2004 (Cth), which is likely to be passed as part of the overall workplace relations reform agenda. Peter Harris and Sean Millard examine this Bill and the provisions aimed at restricting a union’s right to enter workplaces to investigate suspected breaches of industrial instruments or to recruit members.

Continuing the workplace health and safety theme, Amie Saunders provides a valuable overview of the new Occupational Health and Safety Act 2004 (Vic). Some of the key changes include the requirement that employers take all steps that are “reasonably practicable” to ensure a safe workplace, additional duties for employers and employees, wider sentencing options and jurisdiction at the Victorian Civil and Administrative Tribunal (VCAT) to review decisions by the Victorian WorkCover Authority.

Mark Branagan provides a timely examination of workplace privacy rights and obligations that currently exist in Australia. The article considers the report recently released by the Victorian Law Reform Commission and the new Victorian draft Bill on workplace privacy.

In the final article for this Special Issue, Fiona Knowles and Penny Dedes analyse indirect discrimination law since the Schou decision. The article also considers the future for work/family balance post Schou.

Workplace relations practitioners should find the articles in this Special Issue of great assistance in preparing for a significant shake up at the federal level, and also to update themselves on events in Victoria while our eyes have been on Canberra. In fact, all practitioners should find these articles of interest as workplace relations impacts on so many areas of practice as well as in our own lives.

The Workplace Relations Section thanks the authors for contributing to this Special Issue. We trust that readers will find these articles a valuable resource in this challenging and dynamic area.

Elizabeth Hayes
Solicitor
LIV Workplace Relations Section

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