If you’re looking for a major difference between the parties, this is it. As the government continues to defend its controversial WorkChoices legislation, and the Fairness Test that it later introduced, the ALP have made the abolition of AWAs a central tenant of their campaign, with a little help from the good folk at Your Rights At Work

This is an issue with “cut-through”, and there’s a chasm of difference between the Coalition and ALP. And while there may be a certain jitteryness in business circles about the implications of a new Rudd government (think ‘70% of Labor frontbench are ex-union officials’), the big bad WorkChoices line from the highly successful Your Rights at Work campaign seems to have hooked Howard’s battlers. 

Read on, but mind the gap:


According to the coalition website:

  • In 1996, the Coalition Government simplified the prescriptive award system and gave businesses and workers greater choice in negotiating working conditions. For the first time ever, employees were able to have their own individual agreements as Australian Workplace Agreements
    (AWAs). Over 1,300,000 AWAs have since been entered into.
  • Freedom of Association Laws gave workers the right to voluntary union membership. Now, barely 15% of Australia’s private sector workforce now belong to a union.

In addition to these changes, the government’s Workplace Relations Amendment (WorkChoices) Bill 2005 was passed by Parliament on Wednesday 7 December 2005. It consisted of:

  • A move towards a single national system of employment and industrial relations. WorkChoices abolished State and Territory industrial laws. There are a few exceptions including those relating to long service leave, occupational health and safety, workers compensation and anti-discrimination laws.
  • Significantly reduced powers for the Australian Industrial Relations Commission (AIRC), in particular, the removal of its existing wage setting function and compulsory dispute resolution powers.
  • Introduction of new Federal regulatory bodies.
  • Introduction of the Fair Pay and Conditions Standard as a minimum safety net standard.
  • Limitation of termination of employment laws.
  • Rationalisation and simplification of industrial awards.
  • Increased prominence given to workplace agreements (particularly individual workplace agreements).
  • More restrictive laws regulating industrial action. WorkChoices prevents an employee from bringing an unfair dismissal claim where:

    * their employer (and its related companies) employs 100 or less employees
    * they have not completed six months employment with the employer
    * the termination of their employment is for genuine operational reasons (ie reasons of an economic, technological, structural or similar nature) eg redundancy, or
    * they are engaged on a seasonal basis.

  • Changes to transmission of business laws.
  • Changes to laws regulating industrial organisations (registration, freedom of association and right of entry provisions).
  • Reduction in the role of the AIRC. Under WorkChoices, the AIRC:

* loses its wage setting responsibilities
* no longer has responsibility for certifying collective bargaining agreements, and
* is not permitted to make any new industrial awards and loses its compulsory dispute resolution procedures. The AIRC’s dispute resolution powers are limited to those conferred on it by agreement between employers and employees under workplace agreements.

  • Earlier this year, the government introduced the Fairness Test to counter concern about the Work Choices laws. It is designed to prevent workers losing out when they relinquish penalty rates and other entitlements and move to an Australian Workplace Agreement. The Fairness Test only applies to Australian workplace agreements for people earning less than $75,000 per year. There is no earnings threshold for collective agreements. In early October the Workplace Authority published its latest statistical report on the Fairness Test and its first quarterly report on agreement making. There was much disagreement over the interpretation of the results. The report stated:

— Of 150,443 agreements lodged since the Fairness Test was announced, 145,814 have been actioned and 38,050 assessments have been completed.

— 31,014 agreements have been lodged in September and 150,443 total since Fairness Test applied

–145,814 agreements are under active consideration

–38,050 assessments completed

–12,832 agreements in total have passed the Fairness Test – these agreements commonly provided a higher rate of pay in exchange for changes to protected award conditions

–3,762 agreements in total have been assessed as requiring changes within 14 days to meet the Fairness Test – both the employer and employee have been informed of the changes required

–11,515 agreements were assessed as not passing the Fairness Test because there is insufficient information provided to allow the Workplace Authority to satisfy itself that the agreement provided fair compensation in lieu of protected award conditions.

The Australian reported those figures as “almost half of all Australian Workplace Agreements (AWAs) lodged with the Australian Workplace Authority since May have been rejected for not complying with the Federal Government’s fairness test.” Workplace Relations Minister Joe Hockey rejected the suggestion that the AWAs “failed” the fairness test, saying the employers were merely asked to provide more information.


Labor will bin WorkChoices. Their words.

According to the ALP website:

  • Labor will get rid of Work Choices and introduce new laws to protect workplace rights and guarantee fair minimum wages.  “Labor’s system has a real safety net: 10 legislated minimum conditions and modern, simple awards you can always rely on,” says Ms Gillard. Under the policy, for example, workers can’t be made to work an unreasonable number of hours and parents of pre-school-age children can ask for flexible work arrangements. Parental, annual, community service, compassionate and long-service leave are all guaranteed, as well as redundancy pay and public-holiday penalty rates.
  • Under Labor’s new industrial relations system, an independent umpire, Fair Work Australia, will offer examples of simple, flexible collective agreements for employers and employees to use as a guide, and an agreement won’t be made unless a majority of employees support it. Once that’s done, a deal is a deal: both sides must comply with the agreement and there can be no industrial action during its term, which can be up to four years. The terms of the agreement just have to be lawful, the bargaining conducted in good faith, and the employees better off overall against the safety net.
  • Labor IR policy, announced in August, promises to phase out existing AWAs over five years.
  • The Labor website also states that Labor believes collective bargaining is the fairest way forward. “Agreements will be negotiated with the workers at each individual enterprise. That way, employers and workers can agree on fair and flexible work arrangements that best suit their particular needs. Collective enterprise bargaining fosters team work, worker involvement and commitment to the workplace.”
  • Labor will also create an independent umpire called Fair Work Australia. It aims to cater for all Australian employers and employees, offering practical information, advice and assistance, settling disputes and ensuring compliance with Labor’s workplace laws. The body will review the minimum wage each year and publish up-to-date pay scales so every employer and employee is aware of them. Labor is promising that it will deal with unfair dismissal claims quickly and informally, “usually without any need for lawyers.”

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Peter Fray
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