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Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002



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I NFORMATI ON, ANALYSIS AND ADVI CE FOR THE PARLI AMENT

I NF OR MAT IO N A ND R ES EA RC H S ER VI CES

Bills Digest No. 8 2002-03

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

D E P A R T M E N T O F T H E P A R L I A M E N T A R Y L I B R A R Y

ISSN 1328-8091

 Copyright Commonwealth of Australia 2002

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This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

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Published by the Department of the Parliamentary Library, 2002

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest No. 8 2002-03

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Steve O'Neill Economics, Commerce and Industrial Relations Group 8 August 2002

Contents

Purpose....................................................................................................................................... 1

Background ................................................................................................................................ 2

Referral of Power and Employees Affected ............................................................................ 2

The Victorian Workforce.................................................................................................... 3

Basis of Federal Government Policy Commitment................................................................. 4

Position of the Victorian Government..................................................................................... 4

Federal Government Response ........................................................................................... 6

Textile Industry Outworkers.................................................................................................... 6

Views of Non-Government Parties.......................................................................................... 7

ALP ..................................................................................................................................... 7

Australian Democrats ......................................................................................................... 8

Main Provisions ......................................................................................................................... 8

Schedule 1 - Matters Concerning Victoria.............................................................................. 8

Part 2 of Schedule 1............................................................................................................... 11

Application and Savings Provisions ................................................................................. 11

Schedule 2 - Contract Outworkers in Victoria in the Textile, Clothing and Footwear Industry................................................................................................................................ 11

Concluding Comments............................................................................................................ . 12

Endnotes................................................................................................................................... 13

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Date Introduced: 21 March 2002

House: House of Representatives

Portfolio: Employment and Workplace Relations

Commencement: The two schedules of this Bill come into effect by Proclamation or one day after 6 months of the Act receiving Royal Assent.

Purpose

To update employment provisions specified, mainly, under Part XV and Schedule 1A of the Workplace Relations Act 1996 (WR Act) applying to Victorian employees not covered by federal awards and agreements. The amendments provide:

• a more effective right of Victorian employers to stand down employees at times of no work

• enhanced legislated safety net in the areas of bereavement leave, carers' leave and 'overtime' hours

• more effective inspection of Victorian workplaces by departmental inspectors

• minimum rates of pay for textile clothing and footwear contract outworkers

• more effective enforcement of wages and the keeping of wages records

• specific rights of intervention for the Victorian Government in industrial matters, as well as,

• a calculus for the accrual of (existing) annual leave and personal leave credits for permanent employees.

2 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Background

The Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 (the 2002 Bill) reintroduces provisions first introduced in the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 featuring proposals to review and enhance minimum employment provisions applying to Victorian employees under Schedule 15 of that Bill.

As the 'More Jobs Better Pay' Bill failed to pass the Senate in November 1999, proposals to review the operation of Part XV of the WR Act were reintroduced to the Parliament in the Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001 (the 2001 Bill).

Debate on this Bill was adjourned at its second reading in the House of Representatives on 9 August 2001. Bills Digest No.31 2001-02,1 which reported on that Bill also reviewed the 'limited' referral of Victoria's industrial jurisdiction to the Commonwealth, recounted below.

Referral of Power and Employees Affected

The transfer of the Victorian State industrial jurisdiction took place under Victorian and Commonwealth legislation in 1996 (refer to Bills Digest 66 1996-97).2 The State of Victoria and the Commonwealth entered into an agreement to confer certain industrial functions on the Commonwealth under a referral of State powers available under the Constitution [s.51(xxxvii)].

Victoria passed the Commonwealth Powers (Industrial Relations) Act 1996 (Vic). This Act set out the limits of this referral, including the ability for the Victorian Government to unilaterally withdraw from the arrangement at a later date. As was noted in Bills Digest 66 1996-97 where a referral is terminated, the Commonwealth law, to the extent it relies on the referral, ceases to have effect.3

The Federal Government passed the Workplace Relations and Other Legislation Amendment Act (No.2) 1996. This Act created Part XV of the WR Act which administers the former Victorian State industrial jurisdiction as well as facilitating access to federal agreements and awards.

The provisions which were transferred to the Commonwealth were those brought about by the industrial legislation of the Kennett Government in 1992. This law allowed contracts of employment to be entered into based on five minima. These being:

• annual leave of 4 weeks

• 1 weeks paid sick leave

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 3

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

• a minimum wage

• unpaid maternity, paternity and adoption leave

• notice of termination or pay in lieu.

Additional (federal) provisions to the transferred Victorian minima under Part XV provided access to unfair and unlawful termination of employment remedies, stronger equal pay for work of equal value provisions, a stand-down provision, non-discrimination provisions, workplace bargaining provisions under the WR Act and rights in respect of freedom of association. The main features of the new federal provisions were:

• employers with agreements under the Victorian system who wished to make new agreements (either certified agreements or Australian Workplace Agreements) would have to meet the Commonwealth's 'no disadvantage test'

• employers who decided to have their workforces remain on employment agreements entered into under the Victorian system would have fixed time after which these could not be renewed

• Victorian employees would be covered by the Commonwealth's unfair dismissal system

• the constitutional requirements for an interstate dispute to exist as a precondition for a federal award to be made would be negated

• 'Division 2' (of Part VIB of the WR Act) certified agreements (a collective agreement made by a union or employees with an employer which is a corporation) and Australian Workplace Agreements could be entered into without the Commonwealth requirement that the employer be a constitutional corporation; ie these instruments would be available to non-corporate entities such as partnerships, and

• the role of adjusting minimum wage orders was assumed by the Australian Industrial Relations Commission (AIRC).

The Victorian Workforce

As at December 2001, Victorian wage and salary earners numbered about 2.023 million.4 The estimates provided in the previous Bills Digest, gleaned from the Victorian Industrial Relations Taskforce Report,5 suggest that the bulk of this workforce is employed under the federal award and agreement jurisdiction.

However, about 560 000 employees work under the Victorian jurisdiction now administered by the Commonwealth and regulated under Part XV and Schedule1A of the WR Act. Of these, 235 000 work under Victorian minimum wage orders in conjunction with the five minimum conditions prescribed in Schedule 1A. At least this many will

4 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

directly benefit from the amendments proposed in the current Bill (for example, through access to carers' leave).

Basis of Federal Government Policy Commitment

The measures of the current Bill and its two predecessors have been intended to remedy some defects of the 1992 Victorian legislation and provide some incentive to remain outside the federal award stream by narrowing the difference between federal award and Victorian employment conditions.6

The deficiencies of the Victorian system had become apparent to officers of the (former) Victorian Employee Relations Commission by 19957 and to officers of the federal Department of Employment, Workplace Relations and Small Business who expressed concern that the transfer arrangement did not allow departmental officers to enter Schedule 1A workplaces for the purposes of inspecting records concerning employment.8

Proposals to review and improve aspects of the Victorian system were not specifically addressed in the Coalition's 1998 workplace relations policy More Jobs, Better Pay. References were made to harmonising State and federal industrial jurisdictions as well as to preventing small business being roped into federal awards.

The 2001 Coalition policy on workplace relations Choice and reward in a changing policy did make a commitment to retaining the Victorian arrangements:

In a third term we will … maintain the current single system of federal workplace relations laws applying in Victoria, and oppose proposals by the Victorian State Labor Government to re-create new state industrial laws and duplicate industrial tribunals and bureaucracies.9

Position of the Victorian Government

The Hon. Tony Abbott MP observed in his Second Reading Speech10 to this Bill that the Victorian Government under Premier Bracks had introduced a Fair Employment Bill 2000 on 25 October 2000, but it was ultimately rejected by the Victorian Upper House on 22 March 2001. That Victorian Bill would have reinstated a Victorian industrial system, and as noted, provision for such an eventuality was canvassed in the 1996 referral by the making of an order by the Victorian Governor in Council.11

A table comparing provisions of the Victorian Fair Employment Bill 2000 with the Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001 can be found in an appendix attached to Bills Digest 31 2001-02 (and the current 2002 Bill provides largely the same provisions as the 2001 Bill).

In response to the Bill, the Victorian Minister for Industrial Relations, the Hon. John Lenders MP acknowledged that it marginally improves employment entitlements for

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 5

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Schedule 1A workers, but falls short on a wide range of measures which were to be provided in the (Victorian) Fair Employment Bill 2000 and are available to federal award workers. As he said:

Benefits that are standard in Federal Awards that this group of workers miss out include; • Loadings for work that occurs late at night, on weekends and on public holidays; and • Regulation of hours people can work, including the maximum number of hours in a shift, mandatory breaks between shifts and the time when work can be undertaken. … The Howard Government is ensuring Victorian businesses continue to suffer from an uneven playing field. Businesses covered by federal awards and pay awards rates are being undercut by unscrupulous operators who don't provide fair terms and conditions.12

Mr Lenders called for amendments to the current Bill to give the Australian Industrial Relations Commission the power to make 'common rule' federal awards for Victoria, and to deem outworkers as employees so they are entitled to the same basic rights as other workers. The Federal Government has previously dismissed this approach as 'too complex'.13

Mr Lenders has subsequently revisited this strategy. The details of a new approach and proposed legislation appeared in the media including The Age in July 2002,14 and a detailed outline of the latest Victorian proposal to improve minimum employment standards can be found in the website, WorkplaceInfo which reported:

… the Victorian Government will again ask Howard to extend federal award standards to Victorian Schedule 1A workers. It would do this via a mechanism in the Federal Awards (Uniform System) Bill, to be introduced in the Spring session of Parliament starting on 10 September, which would refer the powers to the Federal Government.

If the Government did not adopt the referred powers, the Bill would work through a second stage to allow the Victorian Government, via common rule, to apply federal awards under Victorian legislation via the Victorian Civil and Administrative Tribunal.

… The Bill would be simpler than the Fair Employment Bill and had already won qualified support from employers. The Bracks Government had consulted extensively with employers already, and was happy to hold further discussions.15

Thus, the Victorian proposal is to extend, presumably a certain group of federal awards as common rule16 awards across Victorian industries. Any new Victorian legislation must face the scrutiny of the State's Upper House. Important to the successful passage of a new Bill will be support or otherwise from employers' associations. The Victorian Employers' Chamber of Commerce and Industry (VECCI) is cautious over the detail of the new Victorian Bill and is seeking extensive talks with the Victorian Government.17 However,

6 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

VECCI has also acknowledged that these proposals were more palatable than the Fair Employment Bill.18 The Victorian Head of the Australian Industry Group (AiG), on the other hand, has indicated that his members support the 2002 Victorian Bill as it represented a step to a unitary industrial system and would help prevent unfair competition (ie, competition based on a lower wage/employment standard). The AiG also prefers this proposal to extend the application of federal awards to Victorian workers to any reintroduction of the Victorian Fair Employment Bill.19

Federal Government Response

In a media release of 19 July 2002, the Minister for Employment and Workplace Relations, the Hon. Tony Abbott MP responded to the latest Victorian proposal by noting that it would be carefully studied. He went on to say:

… the announcement that the current Victorian industrial relations system should be the subject of further regulation seemed an odd priority when legislation before the Federal Parliament is aimed at strengthening the Victorian safety net.

'The Federal Government in March this year introduced the Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002. That Bill will improve the workplace relations arrangements for workers in Victoria employed under Schedule 1A of the Workplace Relations Act (estimated at about 500,000 people). It will also assist contract outworkers in the Victorian textile, clothing and footwear industries by giving them an entitlement to be paid at the same rate as employees.'20

Textile Industry Outworkers

As can be seen from the Victorian Government's revised industrial policy, the central intention is to improve the standards available to Schedule 1A employees. Extension of federal award provisions (similar to the Victorian Government extension of minimum wage proposal) would also assist TCF contractors. The Explanatory Memorandum to this Bill notes the (federal) Clothing Trades Award 1999 has the potential to effectively regulate contract outwork.21 Nevertheless, the TCF outwork industry has been of special concern to union and community groups because of its low wages and poor employment conditions, and has been the subject of two recent Senate Committee inquiries where the difficulties of applying award conditions have been discussed.22 A brief overview of more general developments to improve conditions for TCF outworkers may thus be helpful. The relevant union, the Textile, Clothing and Footwear Union of Australia has sought to bind industry contractors and retailers to a code of conduct for the benefit of outworkers. The code would:

• accredit retailers and manufacturers

• open up signatories records to union inspection

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 7

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

• provide a list of all contractors used by firms

• undertake that no work be undertaken by outworkers for less than stipulated by the (relevant TCF) award

• accept that outworkers be defined as employees rather than independent subcontractors.

Alistair Greig who chaired the NSW Department of Industrial Relations' Outworker Supply Chain Management Project in 2000 reports that in the late 1990s, a National Code of Practice Committee representing a broad range of industry participants was formed, and developed a 'No Sweatshop' label for complying firms based on the above code.23

The NSW Government has also taken action recently to ensure minimum employment conditions apply to TCF outworkers in that State under its 'Behind the Label' campaign announced by the Minister for Industrial Relations, John Della Bosca.

The provisions of the current Bill which deal with TCF contractors may be seen as restrictive in so far as they capture relations between, essentially, companies and TCF contractors and not non-incorporated entities such as partnerships. Also the provisions set minimum pay standards but do not broach wider employment matters nor apply to non-TCF contractors. Nevertheless they may achieve improvements for this group of workers, although the evidence of these recent campaigns to improve employment conditions for TCF outworkers suggest that other approaches above the extension of minimum wage conditions may be needed.

Views of Non-Government Parties

Non-government views on the provisions of this Bill may be gleaned from the ALP and Australian Democrat senators in their consideration of Schedule 15 of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999.

ALP

ALP Senators reported in their minority report on the Schedule 15 of the 1999 Bill, that Schedule 15 of that Bill did provide some benefits to Schedule 1A workers in Victoria:

There are some benefits for Victorian employees in Schedule 15 of the Bill. If passed, Victorian employers would no longer be able to force their employees to work 70 hours for 38 hours pay, and the Department would at least have powers to prosecute breaches of the minimum conditions.24

ALP senators also noted that the formula used in the 1999 Bill (and the current Bill) to calculate annual leave credits excluded the time that the employee was on leave from the calculation of the credit and would be inferior, over time, to the annual leave standards prevailing under federal awards and under State awards.25

8 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Australian Democrats

Likewise, Senator Murray concluded in his minority report on the 1999 Bill, that although some clauses of Schedule 15 of the Workplace Relations Legislation Amendment (More Jobs Better Pay) Bill 1999 might be opposed and other clauses might be amended,

… the schedule is essentially beneficial to the interests of Victorian employees because it expands the rights of Industrial Inspectors and broadens out access to minimum conditions, as such the schedule has much to recommend it.26

Allowing for the difference in views, the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee tended to regard the provisions of the 1999 'More Jobs Better Pay' Bill as providing more positives than negatives, but not by much.

Main Provisions

These amendments are to be made to provisions of the Workplace Relations Act 1996.

Schedule 1 - Matters Concerning Victoria

Item 1 inserts subsection 45(3A). It requires that a AIRC Full Bench must grant a Victorian Minister leave to intervene in proceedings in two situations: a) where an appeal is made against the AIRC terminating a bargaining period (for a certified agreement in a particular enterprise) under paragraph 170MW, and b) where an appeal is made against a decision of the AIRC in respect of a Victorian minimum wage order under section 501.

Item 2 repeals and replaces subsection 86(1). These provisions address the inspection of premises by authorised inspectors, usually employees of the Department of Employment and Workplace Relations. The current provisions are retained under subsection 86(1A), however a new subsection 86(1B) stipulates that inspection functions are to be exercised during ordinary working hours, or at other times where necessary.

Item 5 adds new subsection 86(4A). These provisions address the requirement for an person (most likely an employer) to produce documents for inspection. The provisions stipulate that any such request must be made in writing, served on the person (including by fax) and that the document requested be produced at a specified place in not less than 14 days. Proposed subsection 86(4B) prevents withholding of documents on the grounds that may incriminate the person. However, proposed subsection 86(4C) specifies that any document so produced may not be used in criminal proceedings against the person, except in the case of obstructing an inspector.

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 9

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Item 7 inserts new subsection 170MW(1A). The provisions require the AIRC to grant leave to a Victorian Minister to intervene in hearings concerning the termination of a bargaining period for a certified agreement which may affect a Victorian employee.

Item 10 inserts new subsection 501(2A) which requires the AIRC to grant leave to a Victorian Minister to intervene in hearings concerning Victorian minimum wage orders.

Item 11 inserts new section 501A which will allow the AIRC to determine, by order, that the Commonwealth employment program for disabled workers, the Supported Wage System (SWS), may apply to the employment of employees within a job classification. (Currently the SWS may be accessed on an individual basis).

Item 13 inserts new subsection 502(5A) requiring the AIRC to grant leave to the Victorian Government to intervene in any minimum wage order matter which is referred to a Full bench of the AIRC.

Item 15 repeals and replaces subsection 506(2). New subsection 506(2) permits proceedings to secure a penalty (under section 178 of the WR Act) or make good an underpayment of entitlements (under section 179) where a contract of employment (other than an employment agreement) does not comply with a minimum term or condition applicable under subsection 500(1). Proposed subsection 506(3) ensures that common law actions to recover an underpayment can also be undertaken. These provisions are designed to overcome inadequacies of section 533 (concerning breaches), however item 20 will amend section 533 to prevent actions being taken under section 178 and under section 533.

Item 16 inserts clause 509A as a minimum condition of employment which will duplicate the current legislative basis (under section 519) for an employer to stand down employees. Subsection 509A(1) provides that if a contract of employment with employee in Victoria (other than an employment agreement) does not contain provision for the standing-down of employees who cannot be usefully employed due to strike, break-down of machinery or any other stoppage of work for which the employer cannot be reasonably held responsible, the contract is taken to include a provision mentioned in subsection 509A(2). Subsection 509A(2)(a) allows the employer to deduct pay for any day or part of a day for which an employee may not be usefully employed. Subparagraph 509A(2)(b) stipulates that employees' continuity of employment is not broken by a stand-down. The Explanatory Memorandum notes that the new provision is required to address uncertainty with the current provision.

Item 18 repeals and replaces section 514 which will require Victorian employers to maintain time and wages records for employees under regulations of the WR Act. The provisions address the inspection of such records and the issuing of pay-slips.

Item 21 repeals and replaces paragraphs 1(1)(a) and (b) of Schedule 1A (Minimum terms and conditions of employment). Minimum conditions of employment under clause 1 of the Schedule include paid annual leave 1(1)(a), paid personal leave 1(1)(b), and under

10 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

new subparagraph 1(1)(ba) paid bereavement leave. Item 26 adds paragraphs to the Schedule which explain the calculation of these forms of leave.

Items 22 and 23 recognise payments under the Supported Wage System may be regarded as the minimum wage.

Item 24 adds paragraph 1(1)(f) to clause 1 of Schedule 1A which specifies that a new minimum condition of employment is the payment of hours worked in addition to 38 hours in a working week. Item 25 inserts new paragraph 1(3) to Schedule 1A which specifies that the rate of pay for hours worked in excess of 38 is the hourly rate for the classification.

Item 26 inserts clauses 1A, 1B, 1C, 1D, 1E and 1F to the end of Part 1 of Schedule 1A. Subparagraphs (1)(a) and (b) of proposed clause 1A provide a formula for the calculation of an employee's annual leave based on the ordinary hours worked over a year or part thereof. Subparagraph (2) of the proposed clause contains rules about the accrual and taking of annual leave.

Proposed clause 1B specifies the circumstances for the taking of personal leave under subclauses (1)(a) and (b), these being in circumstances of personal sickness or for caring for a family member. Proposed subclause (2) specifies that personal leave is to be paid leave. Proposed subclause (3) specifies the accrual of personal leave which is 8 days per year (or part thereof), and proposed subclause (4) specifies that unused personal leave accrues at the end of each year of employment.

Proposed clause 1C requires under subclause (1) that an employee's entitlement to sick leave is conditional upon the employee promptly notifying the employer of an illness causing an absence. Proposed subclause (2) obliges the employee to produce a medical certificate or statutory declaration re the illness. Proposed subclause (3) obliges the employer to pay for up to 4 days unpaid sick leave in the first 5 months of employment. The Explanatory Memorandum to the Bill gives the example of an employee taking 4 days sick leave in the first month of employment, in which case there would be no sick leave credits to cover the absence. As these credits accrue, the employer is obliged to make payments for the sick leave. Proposed subclause (4) prevents an employee taking sick leave while receiving workers compensation pay.

Proposed clause 1D provides up to 5 days of paid personal leave per year may be taken to care for members of his/her family. Similar conditions apply to the taking of this leave as apply to taking personal leave.

Proposed clause 1E provides for 2 days of paid bereavement leave on the death of a member of the employee's immediate household.

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 11

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Part 2 of Schedule 1

Application and Savings Provisions

Items 28 to 31 concern the new rights of intervention afforded to the Victorian Government as provided under items 1,7,10 and 13 of this Bill and allow these rights to hold in matters already before the relevant tribunal, with the exception of actions to impose a penalty (and recovery of arrears) due to a breach of minimum terms of employment; in this case the breach has to have occurred on or after commencement of item 15.

Item 33 allows regulations made in respect to record keeping (of employers) under a provision proposed for repeal and replacement to continue to have effect under the replacement provision.

Item 34 provides that annual leave accrued prior to items 21 and 26 coming into effect stands and is not affected by the new provisions.

Item 35 provides that sick leave accumulated prior to items 21 and 26 coming into effect continues as personal leave accumulated at the time the new personal leave provisions commence.

Item 36 ensures that new bereavement leave provisions apply to deaths occurring after the commencement of the bereavement leave provisions.

Schedule 2 - Contract Outworkers in Victoria in the Textile, Clothing and Footwear Industry

Part 1- Amendment of the Workplace Relations Act 1996

Item 3 inserts Part XVI

Division 1 - Preliminary

Proposed section 537 states the object of the Part which is to ensure that an outworker in the textile, clothing or footwear industry is paid not less than the amount s/he would have been paid as an employee.

Proposed section 538 sets out definitions of the terms contract outworker, court of competent jurisdiction and employee as used in this Part.

Division 2 - New Commonwealth provisions

Subdivision A - General

Proposed subsection 541(3) provides that the minimum statutory amount to be paid to an outworker in the textile industry employed under a contract for service must be the amount

12 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

the worker would be entitled to be paid if he or she had performed the work as a Schedule 1A employee in Victoria.

Proposed section 542 provides certain powers to inspectors to ensure compliance in the outwork textile industry with the new minimum wage provisions.

Proposed sections 543 to 548 deal with the imposition of penalties and recovery of pay for TCF outworkers.

Proposed section 549 parallels section 353A of the WR Act allowing regulations to be made requiring records of contracts with outworkers to be made and retained and made available for inspection.

Concluding Comments

This Bill is best seen in the context of Victorian Government's attempt to extricate the State and affected Victorian workers from the minimum employment conditions regime essentially put into place by the Kennett Government, and continued under Part XV of the WR Act. The Federal Government through this Bill seeks to improve (but not radically change) minimum conditions under Part XV.

In the conclusion made on the 2001 Bill, Bills Digest 31 2001-02, it was observed that:

The Victorian Government is disappointed with the concessions offered in this Bill as it believes it continues the inferior treatment of Schedule 1A workers in Victoria and prefers Commonwealth awards to be common rule awards across Victoria.27

As can be seen from developments in July 2002 (reported above), the same view is likely to be held for this Bill. Its provisions are not significantly ahead of those contained in the 2001 Bill, while nonetheless offering certain improvements. Thus the debate is likely to shift to the Victorian scene, with interest in the detail of the proposed legislative machinery to apply federal awards to Schedule 1A workers and whether this transfer has sufficient political support.

Other issues are likely to be whether any unilateral Victorian decision to terminate arrangements made under the 1996 referral agreement renders the WR Act's Part XV inoperative, and, whether the proposed Victorian administrative machinery is sufficient to apply federal awards as common rule awards in the event that the Federal Government refuses any Victorian request for federal amendments. However, without the specifics of any Victorian legislation (at this time) these issues remain speculative.

Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002 13

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Endnotes

1 Bills Digest 31 2001-02, Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001.

2 Bills Digest 66 1996-97, Workplace Relations and Other Legislation Amendment Bill (No.2) 1996.

3 ibid.

4 ABS, Wage and Salary Earners, December 2001 Cat. No. 6248.

5 http://www.irv.vic.gov.au/CA256A500013B52D

6 The Victorian Government proposed a higher standard of employment benefits under its Fair Employment Bill 2000 as compared to federal award provisions, nevertheless the aim of the current Bill and its predecessors has been to narrow the difference in employment standards.

7 See Report on the industrial and employment law system applying under the Employee Relations Act 1992, as at 31 December 1996, prepared by Susan Zeitz for the Victorian Industrial Relations Taskforce.

8 Submission of the Department of Employment Workplace Relations and Small Business to the Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999, extract reproduced at p.142.

9 Liberal Party of Australia. Election 2001, Choice and reward in a changing workplace.

10 House of Representatives, Debates, 21 March 2002, p.1837.

11 see Bills Digest 66 1996-97, p.3.

12 The Hon. John Lenders MP, 'Howard should do the right thing by Victorian workers', Media Release, 28 March 2002.

13 'Federal Act : 'too complex' for low-paid Victorian workers' , WorkplaceInfo, 9 April 2001.

14 'Poorer workers to regain lost penalties, ALP vows', The Age 19 July 2002.

15 'Vic puts case for low paid workers to Abbott again', WorkplaceInfo, (www.workplaceinfo.com.au) 19 July 2002.

16 With the exception of federal awards applying to the Northern Territory and the Australian Capital Territory, federal awards bind the private sector respondents named in them and not to all enterprises operating in specific industries.

17 'Vic puts case for low paid workers to Abbott again', WorkplaceInfo, 19 July 2002.

18 'Vic Govt to refer more IR powers', Workforce ,Issue 1360, p.5.

19 'Poorer workers to regain lost penalties, ALP vows', The Age 19 July 2002.

20 The Hon. Tony Abbott MP, 'Victorian Workplace Relations - Re-regulation is not the Answer', Media Release, 19 July 2002.

14 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002

Warning:

This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

21 Workplace Relations Amendment (Improved Protection for Victorian Workers) Bill 2002, Explanatory Memorandum, p.4.

22 Senate Economics Reference Committee, Outworkers in the Garment Industry, (December 1996) and Review of the Inquiry into Outworkers in the Garment Industry (July 1998).

23 Alistair Greig, The struggle for outwork reform in the Australian clothing industry, Journal of Australian Political Economy,v.49 June 2002, p.21.

24 Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999, p.367.

25 ibid, p.364.

26 Senate Employment, Workplace Relations, Small Business and Education Legislation Committee, Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999, p.400.

27 Bills Digest 31 2001-02, Workplace Relations Amendment (Minimum Entitlements for Victorian Workers) Bill 2001, p.10.