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2000
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
WORKPLACE RELATIONS AMENDMENT
(TALLIES AND
PICNIC DAYS) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the Minister for Employment, Workplace Relations
and Small
Business, the Honourable Peter Reith MP)
ISBN: 0642 439540
WORKPLACE RELATIONS AMENDMENT
(TALLIES AND
PICNIC DAYS) BILL 2000
OUTLINE
This Bill proposes the amendment of provisions of the Workplace Relations Act 1996 (the WR Act) relating to allowable award matters, to ensure that the tally system in the meat industry, and union picnic days, would no longer be able to be included in federal awards.
The Bill also proposes transitional arrangements, under which an interim period of six months would be allowed for parties to an award to apply to the Australian Industrial Relations Commission (‘the Commission’) to vary the award so that it deals only with allowable award matters. At the end of the interim period, each award would cease to have effect to the extent that it provides for matters that are not allowable matters, and the Commission would then be empowered to review awards to remove those provisions which have ceased to have effect because of this Bill, and for other purposes set out in the WR Act.
FINANCIAL IMPACT STATEMENT
The proposals contained in the Bill are
budget neutral.
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. Subclause 2(1) provides that, subject to
subclause 2(2), the Act commences on Proclamation. Subclause 2(2) has the
effect that if the Act is not proclaimed to commence within six months of the
Act receiving Royal Assent, it will commence on the day following that
period.
Clause 3 – Schedule(s)
3. This is a formal
clause providing that an Act that is specified in a Schedule is amended or
repealed as set out in the Schedule, and any other item in a Schedule operates
according to its terms.
SCHEDULE 1 – TALLIES AND PICNIC DAYS
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 to help address the needs of the low paid; and
• ensuring that awards do not provide for wages
and conditions of employment above the safety net.
1.2 The proposed
amendments provide for further simplification of awards.
Part 1 – Amendments
Workplace Relations Act 1996
Item 1 –
Paragraph 89A(2)(d)
1.3 Item 1 would remove tallies from the
allowable award matters set out in subsection 89A(2) of the WR Act. Allowable
award matters are the matters which may be the subject of an industrial dispute,
for the purposes of the exercise by the Australian Industrial Relations
Commission (‘the Commission’) of the powers set out in subsection
89A(1). This is because the Government considers that tallies are more
appropriately dealt with at the enterprise or workplace level and, if regulation
by industrial instruments is necessary, by certified agreements or Australian
Workplace Agreements.
Item 2 – After subsection
89A(3)
1.4 Proposed new subsection 89A(3A) would clarify the
scope of the allowable award matters set out in subsection 89A(2) by expressly
providing that tallies and union picnic days are not within the scope of the
allowable matters. This provision is intended to provide certainty as to those
particular matters; it is not intended to set out exhaustively the range of
non-allowable matters.
1.5 Proposed new paragraph 89A(3A)(a) would
provide that union picnic days do not come within the scope of the allowable
award matters. This provision would further qualify the scope of the
Commission’s powers under subsection 89A(1) of the WR Act. An award may
not (directly or indirectly) make provision for the observance by employees of,
or payment in relation to, union picnic days, however
described.
1.6 Proposed new paragraph 89A(3A)(b) would provide that
tallies do not come within the scope of the allowable award matters. Item 1 of
this Schedule would remove tallies from the allowable matters. The purpose of
proposed new paragraph 89A(3A)(b) is to make clear that tally arrangements
cannot otherwise be included in awards as a form of piece rate or method of
payment.
Part 2 – Application, transitional and savings provisions
1.7 This Part provides for the simplification of awards, that is, review
and variation of existing awards to bring them into line with section 89A of the
WR Act as amended by this Schedule and, where appropriate, with the criteria set
out in subitem 6(6) or subitem 8(5).
1.8 Item 8 proposes that at the end
of the interim period (as defined in item 3), awards cease to have effect to the
extent that they provide for matters other than allowable matters, unless those
matters have been included in an award under subitem 6(7) (which deals with the
variation of awards during the interim period) or are allowed by subsections
89A(6) or (8) of the WR Act. Item 6 provides for the review and variation of
awards before the end of the interim period and item 8 provides for the review
and variation of awards after the end of the interim period.
Item 3
– Definitions
1.9 Proposed item 3 contains definitions for the
purposes of Part 2 of this Schedule. The terms defined are:
• ‘award’ – the definition provides that, for
the purposes of this Part, an award does not include an award made under
subsection 170MX(3) of the WR Act or an exceptional matters order;
• ‘interim period’ – the interim period is 6
months from the day on which Part 1 of Schedule 1 commences;
• ‘Principal Act’, which means the WR Act; and
• ‘special consent provisions’, which has the meaning
given by item 5, explained below; and
• ‘termination
time’ – this definition relates to the special transitional
arrangements for special consent provisions, provided under items 6 and 7 of
this Schedule.
Item 4 – Commission’s powers under this
Part
1.10 Subitem 4(1) would provide that the conciliation and
arbitration powers that the Commission may exercise in relation to varying
awards under this Part are the same as those that it would have under Part VI of
the WR Act if that Part applied to conciliation and arbitration in relation to
varying awards under this Part instead of in relation to industrial disputes.
1.11 Subitem 4(2) provides guidance to the Commission in relation to the
exercise of its powers under this Part. The provision is intended to encourage
the simplification of awards during the interim period rather than the
simplification occurring through the operation of item 7 of this Schedule. It
would require the Commission to have regard to the desirability of assisting the
parties to agree on appropriate variations to their awards.
Item 5
– Special consent provisions
1.12 This item would provide a
definition of the expression ‘special consent provisions’. These
are provisions of awards which are briefly described as enterprise agreements
given effect as consent awards by reference to specified Commission wage fixing
principles. The relevant principles are set out in paragraphs (a), (b) and (c)
of item 5.
1.13 This provision is related to item 6, which makes
provision in relation to the variation of special consent provisions, and
subitem 7(2), which excludes special consent provisions from the operation of
subitem 7(1) and item 8 before their termination time, where their termination
time is after the end of the interim period.
Item 6 – Variation
of awards during the interim period
1.14 This item would provide for
the simplification of awards during the interim period.
1.15 Subitem
6(1) would enable the Commission, on application by a party to an award, to vary
the award so that it provides only for allowable award
matters.
1.16 Subitem 6(2) would provide that special consent provisions
(as defined in item 5) cannot be varied under this item before the termination
time of those provisions (as defined in item 3).
1.17 Subitem 6(3) would
provide that the Commission may only arbitrate in respect of an application made
under subitem 6(1) if the applicant or applicants have made reasonable attempts
to reach agreement about how the award should be varied.
1.18 Subitem
6(4) would enable the Commission, as part of the award simplification process,
to vary paid rates awards so that the rates of pay they provide are expressed as
minimum rates of pay. In expressing the rates of pay as minimum rates, the
Commission must act consistently with sections 88A and 88B and subsection 89A(3)
of the WR Act.
1.19 Subitem 6(5) would provide that where the Commission
varies a paid rates award under subitem 6(4), it must include in the award
provisions that ensure that overall entitlements to pay under the award are not
reduced. The Commission would be required to include such provisions unless it
would be in the public interest not to include them.
1.20 Subitem 6(6)
would require the Commission to review the award to determine whether or not it
meets the following criteria:
• it does not include matters of
detail or process that are more appropriately dealt with by agreement at the
workplace or enterprise level;
• it does not prescribe work
practices or procedures that restrict or hinder the efficient performance of
work;
• it does not contain provisions that have the effect of
restricting or hindering productivity, having regard to fairness to employees;
• it contains facilitative provisions that allow agreement at the
workplace or enterprise level, between employers and employees (including
individual employees), on how the award provisions are to apply;
• it contains provisions enabling the employment of regular
part-time employees;
• it is expressed in plain English and is
easy to understand in both structure and content;
• it does not
contain provisions that are obsolete or that need updating;
• it
provides support to training arrangements through appropriate trainee wages and
a supported wage system for people with disabilities; and
• it does
not contain provisions that discriminate against an employee because of, or for
reasons including, race, colour, sex, sexual preference, age, physical or mental
disability, marital status, family responsibilities, pregnancy, religion,
political opinion, national extraction or social origin.
1.21 Subitem
6(7) would provide that where an award does not meet the criteria set out in
subitem 6(6), the Commission must, if it considers it appropriate, vary the
award so that it meets those criteria.
Item 7 – Parts of awards
cease to have effect at the end of the interim period
1.22 Subitem
7(1) proposes that, at the end of the interim period, provisions in awards cease
to have effect to the extent that they provide for matters other than allowable
matters, unless those matters have been included in an award under subitem 6(7),
or are allowed by subsections 89A(6) or (8) of the WR Act.
1.23 Subitem
7(2) would provide that where the termination time for special consent
provisions is after the end of the interim period, this item and item 8 do not
apply to those special consent provisions until their termination
time.
Item 8 – Variation of awards after the end of the interim
period
1.24 Item 8 would require each award that is in force at the
end of the interim period to be reviewed and varied to remove provisions that
have ceased to have effect under item 7. Subitem 8(1) would require the
Commission to commence such reviews as soon as practicable after the end of the
interim period.
1.25 Subitem 8(2) would allow the Commission, when making
such variations, to also restructure awards. This would allow the Commission to
ensure that the award continues to reasonably represent the entitlements of
employees that were provided in the award, in respect of allowable award
matters, before item 7 affected the award.
1.26 Subitems 8(3) to 8(6)
would require the Commission, in undertaking a review under this item, to take
the same steps that it would be required to take under subitems 6(4) to
6(7).
Item 9 – Reviews under Schedule 5 to the Workplace
Relations and Other Legislation Amendment Act 1996
1.27 This item
deals with situations in which the Commission has not started, or has started
but not completed, a review of the award under item 51 of Schedule 5 to the
Workplace Relations and Other Legislation Amendment Act 1996 (the old
review item) before the commencement of this Part. Subitem 9(1) would provide
that where a review under the old review item has not started, or has started
but has not been completed, a review under this Part is to be undertaken instead
of completing the review under the old review item.
1.28 Subitem 9(2)
would provide that where a review had been commenced, but not completed, under
an old review item, the Commission may, for the purposes of a review under item
6 or 8, have regard to any evidence given or submissions made in proceedings
under the old review item.
Item 10 – Corporations not bound by
State awards
1.29 This item proposes to ensure that where a
constitutional corporation (as defined in section 4 of the Act) is bound by an
award, and the award is either varied under subitem 6(1) or wholly or partly
ceases to have effect because of item 7, and as a consequence the award no
longer operates to render a State award invalid, the corporation will not become
bound by the State award unless it chooses to do so. (A corporation wishing to
bound by the State award would need to apply to the relevant State authority to
become bound by the State award.)
Item 11 – Matters to be dealt
with by Full Bench
1.30 This item would provide for the establishment
of Full Bench principles about how the Commission is to deal with matters
arising under the transitional provisions set out in this Part. Subitem 11(1)
would allow the Commission to establish such principles. Subitem 11(2) would
provide that, after such principles have been established, the power of the
Commission to vary an award under this Part could be exercised only by a Full
Bench unless the variation gives effect to a determination of a Full Bench under
the transitional provisions, or is consistent with principles established by a
Full Bench under this item.
Item 12 – Certain provisions not
discriminatory
1.31 This item would qualify the provisions of
paragraphs 6(6)(i) and 8(5)(i) which would require the Commission to review and
vary awards to remove discriminatory provisions. This item provides that an
award is not discriminatory merely because it:
• provides for a
junior rate of pay; or
• discriminates on the basis of the
inherent requirements of particular employment; or
• in respect of
employment in a religious institution, discriminates on the basis of the
teachings or beliefs of the religion and does so in good faith.