From 'Workchoices' to 'Fair Work'

Abstract

FOCUS □ LABOURLAWREFORMANDTHE ORGANISING AGENDA From 'Workchoices' to 'Fair Work' Rae Cooper examines the efforts of Australia'sLabor government to 'rip up' the Workchoices industrial relationsregime RAE COOPER isSenior Lecturer in Work and Organisational Studies at the University of Sydney y ippingup Workchoices and creating a® fairer, simpler system' was themantra of Mm the Rudd oppositionthroughout the 2007Australian federal election campaign. Inthat campaign, themostheateddebateswereseen in theareaofindustrial relations. The (then)Prime Minister, JohnHoward,his Ministers and their supporters in the businesscommunity argued thatWorkchoices ,thefinal pieceofindustrial legislationpassed duringthe government's term, was a 'modern' and'simple' waytoregulate work and workplace relations. Plenty disagreed. Unionsran a sophisticated multi-million dollar campaign underthe Yourrights @ work ' banner and theircampaignstruck a chordin thecommunity , partly becausethere was ampleevidence thatWorkchoices had indeedundermined rights, and standards, in Australian workplaces.The (then) oppositionleader,KevinRudd,and his Workplace Relations spokesperson, JuliaGillard, flayedthegovernment witheverypiece of evidencethatWorkchoices was creating hardship for 'working families'. Therest ishistory. KevinRudd was electedas Prime Minister, as Laborwonon a landslide largely on thebackofantiWorkchoices sentiment. JohnHoward lost his seat,the first Prime Minister todo so ina general election since Stanley Brucein 1929Themuch -anticipated Laborlegislation, theFair WorkBill,running to over600 pages,was presented to the House of Representatives in November of2008justafter theoneyearanniversary oftheelection. Atthetime ofwriting this article ,theprovisions oftheBillwerebeingreviewed bytheSenateStanding Committee on Education, Employment and Workplace Relations who were intheprocessofholding publichearings on the Bill'scontent. It is anticipated thatthe Billwill pass the Senatein late Marchor earlyAprilof 2009,butfollowing from theSenatereview, and inthecontext ofglobalrecession, itcouldwelldo so inamendedform. Individualcontracting Australian Workplace Agreements (AWAs)were first introduced by the Howardgovernment in 1996,viathat government's keypieceofindustrial legislation, theWorkplace Relations Act.These statutory individual contracts were secret,they were 'negotiated' betweenan individual worker and their employer, they'trumped' thetraditional instruments determining the pay and conditions of Australianworkers,namely awards (legallyenforceable industry rulings on pay and conditions towhichunionswereparty) as wellas union-bargained collective agreements.They wereused extensively as a deviceforde-unionisationand theyfacilitated thecontracting outof collectively negotiated standards. When Workchoices amendedthe Workplace Relations Actin2005,theregulations governing AWAs - for exampletheywerejudgedagainst a significantly lowerstandard - made theirimpacteven more corrosive to unionbargaining and to takehome pay and working conditions. The Ruddopposition and the Labor Workplace Relations spokesperson, JuliaGillard, capitalised uponevidenceofdisadvantage atthehandsofAWAs and vowedto removethem Two majorpieces of legislation were introduced to the AustralianParliament by Julia Gillard in2008.Thefirst, theWorkplace Relations Amendment ( Transition to Forward with Fairness) Act2008(Cth)(the'Transition Act')was introduced to Parliament in February and came intoeffect on 28 March2008.ThisActwas the government's first steptowardimplementing the promises it outlined in the Forward with Fairness ' policyittookthe2007federal election. In a movewhichwas welcomedbycritics ofthe Howardgovernment's industrial relations agenda , the Transition Act removedthe optionof makingnew AWAs. However,thisis notto say thatstatutory individual contracts wereremoved altogether. The Transition Act allowed existing AWAs to carry on indefinitely and established a temporary optionforemployers alreadyusing AWAs, Individual Transitional Employment Agreements (ITEAs). WhiletheseITEAswereto be judged by a (higher) standard than Workchoices AWAs making themharder to make and less able to undercut standards, thegovernmentnonetheless has been criticised forfalling short ofitselectionpromise to 'tearup' AWAs. Unfair dismissal Workchoices reconfigured the Australian 'unfair dismissal' framework. It gave an exemption on unfair dismissalactionforemployers withless thanone hundred employees. Ineffect this meant that employees inbusinesses ofthissizecouldbe dismissed without beinggivenwarning orexplanationand were leftwithno legal recourse. In addition,Workchoices introduced a new exemption ,on the groundsof 'operational reasons', whichemployers ofanysizecouldusewhendismissing employees. Again, theeffect was toleave dismissed employees with nolegalremedy andto giveemployers significant scope to hireand fire 'atwill'.Together thechangesto unfair dismissal lead todiminution inworker employment securityand generated significant publicoutcry about theextent towhichitfacilitated theoperation of nakedemployer prerogative. The FairWorkBill removesthe Workchoices blanketexemption on employers of enterprises with100orfewer employees as well'operational reasons'dismissals from theunfair dismissal legINTERNATIONAL union rights Page8 Volume 16Issue 2 2009 islation. However, theBilldoes notreturn to the preWorkcboices situation andtheframework has clearly been crafted withan eyeto thedemands for'flexibility' frombusiness.For instance, the Bill sets out a staged qualifying period for employeesto access unfairdismissalaction. Thereis a six-month qualifying periodforlarger business(definedas morethan15 employees) anda 12-month qualifying periodforsmallbusiness (15 orfewer employees). Minimum standards Traditionally in Australia minimawere set by industry awards,which were detailed,legally enforceable documents setting outtheterms and conditionsin a given industry or occupation. Thesedocuments werethemechanism bywhich conciliation and arbitration tribunals - federally, the Australian Industrial RelationsCommission (AIRC)- resolved industrial disputes...