Will a change of government on Saturday make workplace relations simple or sinuous for employers? Either way, you need to have a strategy in place. By PETER VITALE.
By Peter Vitale
When will workplace relations change if Kevin Rudd is prime minister next week?
One thing that can be pretty much guaranteed is that, regardless of the result, the pace of change will be markedly slower than in the last 18 months.
In the lead up to this Saturday’s federal election, both major parties have identified workplace relations policy as a major point of difference.
There has been a lot of ink dedicated to the debate about whether or not this is in fact the case, and if so, exactly how deeply the parties differ.
Since the election was called, SMEs have been turning their minds to the question of how the landscape of workplace relations law might change. From a legal perspective, SMEs can expect that things will be pretty much the same on Monday as they are today.
The ALP’s workplace policy implementation policy plan sees a long lead-in for some aspects of the policy and some of the policy can be implemented almost immediately through a change to regulations by a new minister.
The bulk of legislation is unlikely to be enacted before control of the Senate changes, and that doesn’t happen until July 2008. So, here is an educated guess at what changes might be implemented, if and when, John Howard doesn’t have any more rabbits at his disposal.
According to Labor, employers can still make AWAs with their employees until their “transitional” arrangements take effect. This is anticipated to be in “early 2008”. Because of the absence of Senate numbers, it can be anticipated that Labor will announce an effective date, with the legislation to follow.
Employers who have at least one AWA in place as at 1 December 2007 will still be able to take on new employees on transitional individual agreements, which operate until the end of 2009.
Labor can be expected to provide the details of its 10 minimum standards, which will replace the five minimum standards under the current Australian Fair Pay and Conditions Standard, early in 2008.
Labor will also announce details of the additional 10 conditions that will be determined by the Australian Industrial Relations Commission, and after 2010 its replacement body, Fair Work Australia. Basic details of these 20 conditions can be found in Labor’s main policy statement.
Within the framework of its new minimum standards, a Rudd government would essentially proceed with the Howard Government’s plans to simplify awards to reduce the number of awards and give them a broader industry focus.
Labor says the process would begin formally on 1 January 2008. In reality, Labor’s policy states that “new awards” would not come into effect until 1 January 2010. Based on previous experience with award simplification exercises, this is probably an optimistic target for most awards.
Many of Labor’s proposed changes, including the re-application of unfair dismissal laws to businesses with less than 100 employees, require amendments to the Workplace Relations Act.
These are unlikely to come into effect until the second half of 2008. Labor may however announce an “effective” date earlier in the year and legislate retrospectively. Furthermore, it seems that there may not be any substantial change to the current system of conciliating and then arbitrating unfair dismissal claims until Fair Work Australia has been established at the beginning of 2010.
Building industry commission
Labor will retain the existing Australian Building and Construction Commission until 2010, after which the functions of the ABCC will transfer to the new industrial body, Fair Work Australia.
Labor’s policy in this seems to acknowledge the effectiveness of the ABCC in curbing union militancy, which will relieve SMEs in that industry. There is much in the detail of possible appointments to the ABCC and the post 2010 regime that remains to be seen.
Because a Rudd government is unlikely to be in a position to legislate quickly, the current arrangements for negotiating and making a collective union or non-union agreement are not likely to change substantially in the short term.
However, unions will gain a much greater capacity to get employers to the bargaining table in the second half of 2008. While short on details, the Labor policy suggests that they will return to something more closely reflecting the pre-WorkChoices regime.
Labor will introduce an obligation on the parties to bargain in “good faith”, which has enormous potential to influence the approach of employers and unions to negotiating agreements. It can be expected that some of the rules relating to “prohibited content” will be changed quickly by Labor after the election.
Much of the detail of what constitutes prohibited content is contained in regulations, which can be changed without parliament. This is likely to result in demands for more “union friendly” clauses becoming more common than under WorkChoices.
While a Labor government would do away with AWAs, there will still be a capacity for high wage earners to “contract out” of awards.
Employees earning more than $100,000 a year will be able to enter common law contracts that exclude award conditions. The 10 legislated minimum standards would continue to apply. These changes will not come into place before 1 January 2010.
Labor will retain existing Trade Practices Act bans on secondary boycotts. Labor’s policy also indicates that the requirement for a secret ballot before industrial action will be maintained.
The main interest here will be whether the rules for secret ballots are relaxed later in 2008, when Labor should be able to legislate. Labor has also said that it will retain existing right of entry rules for union officials and laws enabling employers to obtain orders to stop or prevent industrial action. Again, whether any changes of substance are made will probably be a question for late 2008.
National IR system
Labor will continue to use the constitutional corporations power to regulate industrial relations. To achieve complete coverage of non-corporate businesses, however, the co-operation of state governments will be needed.
Even if there are “wall-to-wall” Labor governments, this will not necessarily be a straightforward exercise. Labor’s implementation plan would give a new government until the 2010 implementation of some of the major changes proposed to negotiate with the states.
The lesson for employers
Love, loath, or indifferent to the present workplace relations laws, you’ll probably have most of it for at least another 12 months.
Peter Vitale is the principal of CCI Victoria Legal .