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Workplace Relations Amendment (Tallies) Bill 2001

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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)

 

 

 

 





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         This is a formal clause providing that an Act that is specified in a Schedule is amended or repealed as set out in the Schedule, and any other item in a Schedule operates according to its terms.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.