WorkChoices
WorkChoices was the name given to changes made to the federal industrial relations laws in Australia by the Howard government in 2005, being amendments to the Workplace Relations Act 1996 by the Workplace Relations Amendment Act 2005, sometimes referred to as the Workplace Relations Amendment Act 2005, that came into effect on 27 March 2006.
In May 2005, Prime Minister John Howard informed the Australian House of Representatives that the federal government intended to reform Australian industrial relations laws by introducing a unified national system. WorkChoices was ostensibly designed to improve employment levels and national economic performance by dispensing with unfair dismissal laws for companies under a certain size, removing the "no disadvantage test" which had sought to ensure workers were not left disadvantaged by changes in legislation, thereby promoting individual efficiency and requiring workers to submit their certified agreements directly to Workplace Authority rather than going through the Australian Industrial Relations Commission. It also made adjustments to a workforce's ability to legally go on strike, enabling workers to bargain for conditions without collectivised representation, and significantly restricting trade union activity.
The passing and implementation of the new laws was strongly opposed by the left side of politics, particularly the trade union movement. It was argued that the laws stripped away basic employee rights and were fundamentally unfair. The Australian Council of Trade Unions, the peak association for Australian trade unions, consistently ran television advertisements attacking the new laws and launching its "Your Rights at Work" campaign opposing the changes. The campaign involved mass rallies and marches, television and radio advertisements, judicial action, and e-activism. The week of action culminated on 1 July 2005 with a "SkyChannel" meeting of union delegates and members organised by Unions NSW. The meeting was followed by a large rally in Sydney and events in regional areas. Individual state governments also opposed the changes. For example, the Victorian Government introduced the Victorian Workplace Rights Advocate as a form of political resistance to the changes.
WorkChoices was a major issue in the 2007 federal election, with the Australian Labor Party led by Kevin Rudd vowing to abolish it. Labor won government at the 2007 election and repealed the whole of the WorkChoices legislation and replaced it with the Fair Work Act 2009.
''WorkChoices'' changes
WorkChoices made a number of significant changes to the Workplace Relations Act 1996, including:- formation of a single national industrial relations system in relation to incorporated corporations, to replace the separate State and federal systems.
- establishment of the Australian Fair Pay Commission to determine minimum wages in place of National Wage Cases at the Australian Industrial Relations Commission.
- streamlined the making of Certified Agreements and Australian workplace agreements, including increasing the maximum life of agreements from three years to five years.
- reduction in the number of allowable matters, which could be covered by awards.
- creation of five minimum workplace conditions.
- exemption of companies with fewer than 101 employees from unfair dismissal laws.
- exemption of all companies from unfair dismissal laws, where a dismissal is for a bona fide operational reason.
- increased restrictions on allowable industrial action.
- mandated secret ballots for industrial action.
- outlawed pattern bargaining and industry-wide industrial action.
Scope of the system
The Howard government sought to bring as many employees under WorkChoices as was within its constitutional powers. It relied on the corporations power extending its coverage to an estimated 85% of Australian employees. All employees of "constitutional corporations" became covered by the WorkChoices system. Other constitutional powers used by the federal government to extend the scope of the legislation included the territories power to cover the Australian territories, including the external territories of the Christmas and Cocos Islands, the external affairs power, the interstate and overseas trade and commerce power, and the powers of the Commonwealth to legislate for its own employees. Victoria had voluntarily referred its industrial relations powers to the Commonwealth in 1996, under section 51 of the Constitution.
While one of the purposes of these changes was to provide a single national industrial relations system, in practice, each of the States' systems remained in force. State industrial relations systems continued to apply to employers that were not covered by federal agreements, bound to a federal award, or were not incorporated and trading, financial or foreign organisations. Employers that remained in the State systems included sole traders, partnerships, incorporated associations which are not "trading and financial corporations" and state government bodies.
Court decisions may be required to establish whether an organisation falls under this definition; areas of contention include local government and incorporated associations that undertake some trading activities, such as not-for-profit organisations. There have been several test cases in state and federal jurisdictions, including Bysterveld v Shire of Cue and Bankstown Handicapped Children's Centre Association Inc v Hillman. The general principles established by this case and similar cases since the introduction of WorkChoices were that the types of activities carried out by an individual organisation and the extent and value of these activities must be assessed on a case-by-case basis to determine whether the activities are considered substantially "trading and financial".
Significant changes
Changing dismissal protection laws for most employees
WorkChoices contained provisions relating to both unfair dismissal and unlawful termination, which are separate matters. The Australian Industrial Relations Commission retained some of its role in hearing unfair dismissal and unlawful termination cases, but increased the emphasis on mediation and conciliation. It also reduced the timeframe within which employees were able to lodge such claims; claims had to be lodged within 21 days from the date of termination. Employees could apply for an extension of this timeframe, but a review of published decisions shows that extensions were infrequently granted. Fees applied for applications, at one time $55.70.Both unfair dismissal and unlawful termination claims went through an initial hearing and compulsory conciliation conference at the AIRC. Only when the conciliation was unsuccessful and a conciliation certificate issued could the claim proceed to the next step. For unfair dismissal claims, the claim proceeded to arbitration by the AIRC, where a Member of the Commission could issue a binding decision. For unlawful termination claims, the claim proceeded to a court with appropriate jurisdiction such as the Federal Court or the Industrial Division of the Federal Magistrates Court.
Prior to WorkChoices, unfair dismissal protections existed in awards or through state industrial relation commissions. The changes to dismissal laws was part of WorkChoices which reduced the protections of previous unfair dismissal laws, which were introduced at a federal level by the Labor government of Paul Keating in 1993. The arguments for these changes related to creating jobs by removing the burden on business of dismissing unsuitable employees. Arguments against the changes included the lack of job security for employees.
WorkChoices introduced several restrictions on who was able to lodge an unfair dismissal claim with the AIRC. Unfair dismissal was defined by the Workplace Relations Act 1996 as dismissal which is "harsh, unjust or unreasonable." Employees had to be working for a business that had more than 100 employees, and served a qualifying period of 6 months to claim unfair dismissal. Other reasons that excluded an employee from taking unfair dismissal action included where an employee was employed on a seasonal basis or on a contract of employment for a specified period or task, employed on a probationary period that was reasonable and determined in advance, a short-term casual employee, a trainee engaged for a specific period, or an employee not employed under an award or workplace agreement and earning more than $101,300 per year.
Significantly, the Act also excluded employees who were dismissed for "genuine operational reasons or reasons including genuine operational reasons". "Genuine operational reasons" were defined in the Act as "reasons of an economic, technological, structural or similar nature." Interpretation of this clause by the AIRC had created precedent for a broad application of this section of the Act. In Carter v Village Cinemas, the Full Bench of the AIRC decided upon appeal that an operational reason need only be a reason for dismissal, not the sole or dominant reason for dismissal. In another significant decision, Andrew Cruickshank v Priceline Pty Ltd, Mr Cruickshank was employed at Priceline on a package of $101,150. He was terminated and Priceline subsequently hired a new employee in the same position on a package of $65,000–$75,000. Priceline claimed, successfully, that they had not breached the unfair dismissal provisions of the Act, as the dismissal saved the business money, therefore was for a reason including a genuine operational reason.
Unlawful termination encompassed several parts; notice of termination, Centrelink notification, and prohibited reasons. Under Section 661 of the Act, employees, other than excluded employees were required to be given a specified period of notice of termination or payment in lieu of this notice. Where this was not provided to an employee, an unlawful termination application could have been lodged. In certain circumstances where a business terminates 15 or more employees, the business needed to give written notice to a body prescribed by the Workplace Relations Regulations 2006, currently Centrelink.
Prohibited reasons for termination included discriminatory reasons such as age, race, national extraction, political opinion, sex, sexual preference, religion, marital status, disability, pregnancy and family responsibilities; refusal to sign an Australian workplace agreement ; being involved in proceedings against an employer for alleged breach of the law; membership or non-membership of a union or participation in union activities; and absence from work due to illness or injury, parental leave or emergency management activities. Unlike unfair dismissal provisions, there were no restrictions on employees who can lodge unlawful termination claims for prohibited reasons.