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CHANGES TO THE AIRC FUNCTIONS UNDER “WORK CHOICES”

CHANGES TO THE AIRC FUNCTIONS UNDER “WORK CHOICES”. Address by Senior Deputy President Watson to VTA HR Conference 2006 4 May 2006. The Simplified Act. The Act proper : s.1-s.919, dealing with the ongoing operation of the Act (673 pages) 10 Schedules (527 pages) dealing with: Organisations

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CHANGES TO THE AIRC FUNCTIONS UNDER “WORK CHOICES”

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  1. CHANGES TO THE AIRC FUNCTIONS UNDER“WORK CHOICES” Address by Senior Deputy President Watson to VTA HR Conference 2006 4 May 2006

  2. The Simplified Act • The Act proper : s.1-s.919, dealing with the ongoing operation of the Act (673 pages) • 10 Schedules (527 pages) dealing with: • 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)

  3. 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.

  4. Constitutional Basis • 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?

  5. 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

  6. Other Significant Functions • appeals • suspension / termination of bargaining periods • right of entry

  7. Functions no longer with the AIRC • Content of awards: • the Fair Pay and Conditions Standard • matters that are no longer allowable • Certification of agreements • Certificates in relation to civil action

  8. Dispute Resolution in the AIRC • 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

  9. 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

  10. 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

  11. Model Dispute Resolution Process Dispute starts Talks at workplace Successful = Dispute Resolved Unsuccessful Private ADR ADR in AIRC No agreement on ADR 14 days Notify Registrar ADR in AIRC

  12. Model Process in the AIRCKey Points • 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

  13. Model Process – Different disputes The model process applies to a variety of disputes including those about: • entitlements under the Australian Fair Pay and 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

  14. Collective Bargaining Disputes • 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

  15. Disputes about making a new agreement • The Commission can assist with resolving disputes about matters arising in the course of bargaining for a new 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.

  16. Termination of Bargaining Period • Minister may terminate bargaining period by declaration • If no resolution Full Bench must make workplace determination

  17. Disputes under Workplace Agreements • The dispute must be one able to be resolved through the AIRC under the agreement. • 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.

  18. Dispute resolution procedures in agreements • The Workplace Relations Act1996 (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.

  19. 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: • 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.

  20. 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.

  21. 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: • 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.

  22. 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.

  23. 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.

  24. 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)]

  25. Disputes – Transitional Employers • 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

  26. Industrial Action Employees planning to take protected industrial action must first: • give notice to their employer of the 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

  27. 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.

  28. 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

  29. Termination of EmploymentNew Exclusions • Six month qualifying period • Employees of employers with workforce of 100 or less • Employees dismissed for ‘genuine operational reasons’

  30. Termination of EmploymentOther 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

  31. Awards Changes following Work Choices: • award content is further restricted • some conditions may be ‘preserved’ • new law covers both federal and many state awards • award rationalisation and simplification process

  32. The AIRC and Awards • The AIRC is responsible for all federal awards and those state awards that become part of the new national system. • The AIRC cannot create any new awards except under limited circumstances

  33. Award Review Taskforce Taskforce to recommend to Government strategies for: • rationalisation of existing award wage and classification structures - AFPC • rationalisation of all federal and many state awards.

  34. Award Rationalisation – the AIRC • 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.

  35. 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

  36. 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 pre-reform award and where the terms are greater than the Fair Pay and Conditions Standard.

  37. Award Review and Simplification • Awards to be simplified in conjunction with or after rationalisation • The AIRC must review all awards within a timetable prescribed in the regulations.

  38. Simplified Awards Under the simplification process non-allowable matters and certain other terms are removed. The simplified award will include: • Allowable matters • Preserved terms • Anti-discrimination clauses

  39. Non-allowable matters Awards cannot contain: • non-allowable matters • matters provided for by the Australian Fair Pay and Conditions Standard • terms involving discrimination, preference and right of entry

  40. The AIRC • 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

  41. Core Functions • Facilitating positive industrial and workplace relations through advice, private arbitration, mediation, conciliation and agreement-making • Preventing and resolving collective and individual workplace disputes • Termination of employment applications involving large employers • Promoting good employment practice and workplace relations

  42. Initiatives • Range of user-friendly information • Guidance in drafting dispute resolution clauses in agreements • User briefings • Facilitating choice of member where practicable

  43. What to expect from the AIRC • 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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