Transcript Slide 1

CHANGES TO THE AIRC
FUNCTIONS UNDER
“WORK CHOICES”
Address
Click
to add
by Senior
text Deputy President
Watson to VTA HR Conference 2006
4 May 2006
The Simplified Act
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The Act proper : s.1-s.919, dealing with the ongoing
operation of the Act (673 pages)
10 Schedules (527 pages) dealing with:
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Organisations
Extra definitional provisions
The oath of office
International Conventions (2)
Transitional arrangements:
 parties bound by federal awards
 existing pre-reform agreements
 State employment agreements and awards
Transmission of business rules
Transitionally registered organisations
Regulations (291 pages)
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Work Choices Legislation
In December 2005, the Australian Parliament
passed the Work Choices Act, significantly
changing the nation’s industrial laws.
Under Work Choices, the role and functions
of the Australian Industrial Relations
Commission (AIRC) have been altered but
the core function of industrial dispute
resolution remains.
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Constitutional Basis
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Work Choices is based predominantly on the
corporations power
No reliance on the industrial dispute power
except in relation to non-corporations already
in the federal system
Purports to exclude the operation of state
industrial systems in relation to Constitutional
corporations
Coverage of 80% of the workforce?
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Overview -the Commission Today
The main functions of the AIRC after
Work Choices are:
dealing with industrial action
 rationalising and simplifying awards
 handling termination of employment claims
 dispute resolution
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Other Significant Functions
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appeals
suspension / termination of bargaining
periods
right of entry
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Functions no longer with the AIRC
Content of awards:
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the Fair Pay and Conditions Standard
matters that are no longer allowable
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Certification of agreements
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Certificates in relation to civil action
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Dispute Resolution in the AIRC
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Disputes under the Model Dispute Resolution
Process
ADR for disputes under award, w/p
determination, w/p agreement or a provision
of the Act
Collective bargaining disputes
Disputes under workplace agreements
Disputes under ‘old’ certified agreements
Industrial disputes with transitional
employers
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Model Dispute Resolution Process
‘The parties to a dispute must genuinely
attempt to resolve the dispute at the
workplace level.’
s.695 Workplace Relations Act
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Model Dispute Resolution Process
‘If a matter in dispute cannot be resolved at
the workplace level, a party to the dispute
may elect to use an alternative dispute
resolution process in an attempt to resolve
the matter.’
s.696(1) Workplace Relations Act
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Model Dispute Resolution Process
Dispute
starts
Talks at
workplace
Successful = Dispute Resolved
Unsuccessful
Private
ADR
ADR in
AIRC
No agreement
on ADR
Notify
Registrar
14 days
ADR in
AIRC
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Model Process in the AIRC
Key Points
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Collective or individual rights disputes
Notification to Registrar if no agreement on
ADR provider
Parties consent to AIRC providing ADR or
one applies 14 days after notification
AIRC has no power to make binding orders
May arbitrate or make recommendations by
consent
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Model Process – Different disputes
The model process applies to a variety of disputes
including those about:
 entitlements under the Australian Fair Pay and
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Conditions Standard, other than wages and related
matters
the terms of a workplace agreement (where the
model process is included in the agreement or taken
to be included)
the application of a workplace determination
the application of awards
meal breaks, public holidays or parental leave
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Collective Bargaining Disputes
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Disputes arising in the course of bargaining
for a proposed collective agreement
AIRC involvement requires consent of all
parties
AIRC has no power to make binding orders
May arbitrate or make recommendations by
consent
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Disputes about making a new
 The Commission can assist with resolving disputes about
agreement
matters arising in the course of bargaining for a new
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collective agreement, but only if all the parties agree that
it should do so.
Parties will not be compelled by the Commission to do
anything.
The Commission will seek to resolve disputes in relation
to new collective agreements through conciliation or
mediation. This would usually involve private discussions
with the parties with the aim of narrowing the issues in
dispute and ultimately reaching a workable and lasting
agreement.
The Commission cannot arbitrate or otherwise determine
the rights and obligations of a party to a dispute in
relation to making a new collective agreement. It may
however make recommendations, if requested by the
parties to do so.
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Termination of Bargaining Period
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Minister may terminate bargaining period by
declaration
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If no resolution Full Bench must make
workplace determination
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Disputes under Workplace
Agreements
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The dispute must be one able to be resolved
through the AIRC under the agreement.
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The agreement specifically refers to the AIRC; or
The agreement does not exclude the AIRC
The AIRC has the powers given to it by the
agreement of the parties but does not have
the power to make orders.
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Dispute resolution procedures in agreements
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The Workplace Relations Act 1996 (the Act) provides
that a workplace agreement must include procedures
for resolving disputes about matters arising under
the agreement between the employer and the
employees whose employment will be subject to the
agreement. It is up to the parties to decide what kind
of dispute resolution procedures to include in the
agreement. They can provide for reference of
disputes to a third party of their choosing. If parties
want the Australian Industrial Relations Commission
to conduct any dispute resolution process under the
agreement they can include a provision in the
agreement which makes the Commission the forum
for resolving disputes.
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Referring disputes to the AIRC
The Commission cannot conduct a dispute
resolution process in relation to a dispute under a
workplace agreement unless two conditions are
fulfilled:
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The first condition is that under the terms of the agreement
the dispute may be resolved by the Commission. It is not
necessary that the AIRC be referred to in the dispute
resolution provision; it is sufficient that there is nothing which
excludes the AIRC. Parties can choose to include specific
reference to the Commission (or a particular member or
members of it) if they wish to avoid doubt.
The second condition is that any preliminary steps required
under the agreement have been taken.
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ASPECTS OF DISPUTES PROCEDURE
Representatives
 Parties might also wish to specifically provide for
representatives to be appointed for the purposes of
the dispute settling procedure.
Privacy and confidentiality
 Generally speaking the dispute resolution process is
a private one. Information and documents are to be
kept confidential. Information may be disclosed if it is
to be used to conduct the dispute resolution process,
if the parties consent, or if disclosure is required or
permitted by law. Nothing said or done in the
process is admissible in other proceedings unless
the parties agree or the regulations permit.
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Functions and powers of the AIRC
 When a dispute is referred to it, the Commission has
the functions and powers given to it by the terms of
the workplace agreement or those that are otherwise
agreed by the parties. However there are a number
of general requirements on the AIRC:
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it is prohibited by legislation from making an order;
it must act quickly and in a way that avoids unnecessary
technicalities and legal forms; and
it must comply with any procedures the parties have agreed
on.
It is open to the parties to a workplace agreement to
nominate the powers and functions to be conferred on the
Commission for the purpose of the dispute resolution
procedure. Those powers could be mediation, conciliation
and /or arbitration.
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Procedural matters
 There are a number of procedural matters which might require
discussion when disputes are referred to the Commission.
These matters might include the location and timing of meetings,
whether presentations should be oral, written or both, and
whether the parties should be represented and if so by whom. It
might also be necessary to specify whether the Commission
member is able to meet separately with the parties and, if so,
what confidentiality rules should apply. Another matter which can
arise is whether the parties agree that the Commission member
should be free to make suggestions or recommendations for
resolution. Although there is nothing to prevent the parties
including such matters in the agreement itself, there is no need
to do so.
Appeal mechanisms
 In a case in which the parties agree that the Commission should
exercise powers of arbitration they may also wish to provide for
an appeal mechanism. Unless the agreement specifically
provides for an appeal to a Full Bench the decision of the
member concerned cannot be appealed except on jurisdictional
grounds.
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Providing for normal work during dispute resolution
 An agreement might also include a provision requiring that work
continue as normal while a dispute is being dealt with under the
dispute resolution procedure.
Nominating a particular AIRC member
 It is not necessary to nominate a particular member of the
Commission and usually dispute resolution procedures simply
refer to the Australian Industrial Relations Commission. If a
dispute is referred to the Commission a member will be
assigned to the matter through the normal allocation process.
 If they wish, parties may nominate a particular member of the
Commission or set out a procedure for nominating a member
when a dispute arises. If a particular member is nominated, it is
advisable to provide for a substitute in case that member is not
available.
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EXISTING LW AGREEMENTS
Eg TAFE agreements to expire in August
2008:
May be varied only to remove ambiguity or
uncertainty
May be terminated
Remain subject to old s.170LW dispute
settlement process [Schedule 7, clause 2(e)]
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Disputes – Transitional Employers
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Organisations bound by a transitional award
with at least one member bound by the
award or a transitional employer may notify a
dispute
Conciliation and arbitration available
Arbitrate allowable matters only
Particular powers
Recommendations by consent
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Industrial Action
Employees planning to take protected
industrial action must first:
 give notice to their employer of the
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intended action
ensure the action is authorised
seek a secret ballot order from the AIRC
secure at least 50 per cent of votes in a
secret ballot
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Requirements for protected action
The requirements for taking protected industrial action
include:
 any existing agreement has expired and the
Commission has been notified that bargaining is
beginning (this is known as initiating a bargaining
period);
 the industrial action does not involve pattern
bargaining;
 the industrial action is not in support of the inclusion
of claims that cannot be lawfully included in an
agreement (this is known as prohibited content); and
 in the case of unions or employees, the Australian
Industrial Relations Commission has granted an
order for a secret ballot to be held and the ballot has
endorsed action being taken.
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Industrial Action – Orders
Orders to stop or prevent industrial action:
AIRC must make order if action
unprotected
 AIRC must make order if substantial loss or
damage likely to constitutional corporation
from action by non-federal award
employees
 decision must be made within 48 hours or
an interim order issued
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Termination of Employment
New Exclusions
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Six month qualifying period
Employees of employers with workforce of
100 or less
Employees dismissed for ‘genuine
operational reasons’
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Termination of Employment
Other Changes
Applications may be dismissed without a
hearing, and with no appeal available, on
grounds including:
excluded employee
 6 month qualifying period not met
 frivolous
 late filing
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Awards
Changes following Work Choices:
 award content is further restricted
 some conditions may be ‘preserved’
 new law covers both federal and many
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state awards
award rationalisation and simplification
process
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The AIRC and Awards
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The AIRC is responsible for all federal
awards and those state awards that
become part of the new national system.
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The AIRC cannot create any new awards
except under limited circumstances
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Award Review Taskforce
Taskforce to recommend to Government
strategies for:
 rationalisation of existing award wage
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and classification structures - AFPC
rationalisation of all federal and many
state awards.
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Award Rationalisation – the AIRC
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The AIRC will begin the rationalisation
process upon receiving a request from the
Minister. The request will specify a time limit
for the process.
A Full Bench is required.
Rationalised awards will include only
allowable matters – those matters covered
by the Fair Pay and Conditions Standard will
be excluded.
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Award Rationalisation Process
Established
Oct 2005
Award Review
Taskforce
Report to Minister
on award
rationalisation by
April 2006
Govt decides
on process
Ministerial
request(s)
AIRC
Completion of award
rationalisation on
schedule
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Preserved Award Terms
Include:
 annual leave, personal/carer’s leave,
parental leave, long service leave, notice of
termination, jury service and superannuation.
Apply to employees:
 whose employment is regulated by a prereform award and where the terms are
greater than the Fair Pay and Conditions
Standard.
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Award Review and Simplification
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Awards to be simplified in conjunction with or
after rationalisation
The AIRC must review all awards within a
timetable prescribed in the regulations.
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Simplified Awards
Under the simplification process nonallowable matters and certain other terms are
removed. The simplified award will include:
 Allowable matters
 Preserved terms
 Anti-discrimination clauses
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Non-allowable matters
Awards cannot contain:
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non-allowable matters
matters provided for by the Australian Fair
Pay and Conditions Standard
terms involving discrimination, preference
and right of entry
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The AIRC
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Australia’s premier provider of industrial
dispute resolution services
contributing to effective workplace relations
and practice
recognised as contributing strongly to
Australia’s economic and social well-being
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Core Functions
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Facilitating positive industrial and workplace
relations through advice, private arbitration,
mediation, conciliation and agreementmaking
Preventing and resolving collective and
individual workplace disputes
Termination of employment applications
involving large employers
Promoting good employment practice and
workplace relations
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Initiatives
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Range of user-friendly information
Guidance in drafting dispute resolution
clauses in agreements
User briefings
Facilitating choice of member where
practicable
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What to expect from the AIRC
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Independence and impartiality
Inexpensive, timely and flexible processes
Industry-specific knowledge and expertise
Experience
Accessibility and focus on the parties’ needs
National coverage
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