Many organisations focus their energy on attracting and retaining the much talked about Y Generation, rather than exploring the needs of experienced employees. Retaining baby boomers in the workforce for longer while valuing their life skills and experience is one of the keys to addressing future labour shortages.

Australia's number of 55-64 year olds staying in paid work is relatively low when it is compared with other OECD countries. Up to 70% of older workers stay on in countries such as Japan, Switzerland and Norway compared with about 50% in Australia.

Employers need to look at strategies to retain and attract all workers and ask themselves a range of questions.

• Are our job advertisements only aimed at attracting younger employees?
• Are we only advertising online?
• Are we asking our experienced workers what they want?
• Are we offering part-time work and flexible work practices?
• Are we prepared to change job roles for older employees to include less physical work?
• Do baby boomers feel valued or threatened working in our business?
• Do we offer further training and career planning to our older workers?
• Do we stay in touch with employees who have retired?
• Do we call on such employees when we are short staffed?
• Do we promote the value and experience that comes with age?

In 2006-07 the Human Rights and Equal Opportunity Commission (HREOC) received 106 complaints under the Age Discrimination Act 2004, of which 78% of the complaints related to employment. The HREOC has recently released an education campaign aimed at busting the myths and stereotypes regarding mature age workers.

Myths addressed in the campaign

• Mature age workers will cost the business more for their experience.
• Mature age workers may be prone to health problems.
• There is no long term benefit to training and developing mature age workers.
• Younger workers are better performers than mature age workers.
• Mature age workers won't be able to adapt to changes and new technology.

Myth-busting facts

• Mature age employees can save costs to employers through increased rates of retention. Workers aged over 55 are five times less likely to change jobs compared with workers aged 20-24, reducing ongoing recruitment and training costs.
• A 2006 ABS survey found that mature workers were the least likely group to take days off due to their own illness or as a carer.
• Research of OECD countries shows those countries that provide a higher level of training to older workers have workers leaving the labour market at an older age.
• A study of OECD nations concluded that verbal skills, communication and intelligence remain unchanged as a person ages.
• ABS data shows that Australians aged 55-64 are the fastest growing users of information technology.

Members seeking further information on the benefits of attracting and retaining mature age workers should contact the CCI Business Advice Centre on (08) 9365 7660 or email: advice@cciwa.com.

By Norma Smith

CCI BAC Employee Relations Adviser

This member alert includes a summary of key facts and dates regarding the Government's Transition Bill.

Parliament has now passed the first phase of the Government’s legislation to amend the Workplace Relations Act 1996 ("the Act"). The Transition Bill is entitled Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 ("The Transition Bill"). It is the first stage of the transition to the Rudd Government's new workplace relations system intended to be fully operational by 2010.

The Transition Bill:

• Abolishes the Australian Workplace Agreement system
• Introduces a transitional individual agreement making system
• Commences award modernisation
• Repeals the obligation on employers to issue the workplace relations fact sheet.

The Transition Bill does not alter other features of the Act such as unfair dismissal or right of entry.

New laws

Q - What are the changes made by the Transition Bill?

The changes are mainly about phasing out of individual statutory agreements, Australian Workplace Agreements (AWAs), replacing them with Individual Transitional Employment Agreements (ITEAs) – in the short term - and commencing the award modernisation process.

Australian Workplace Agreements

Q - What happens to my agreements? Will my existing AWAs continue to operate?

Yes, all current agreements will continue to operate unless terminated under the current rules or replaced by an Individual Transitional Employment Agreement (ITEA) (see below). An ITEA can replace an AWA that is still within its nominal term but a collective agreement can only apply after an AWA is terminated.

Once the Transition Bill commences operation it will not be possible to offer the existing form of AWAs to employees. AWAs will be abolished.

Q - What happens after the AWA expires?

After the nominal expiry date the current rules regarding AWAs continue to apply. This means that if the employer and employee do nothing, the AWA will continue to apply under its current terms and conditions.

However, once the AWA has passed its nominal expiry date either party can unilaterally terminate the AWA with 90 days written notice.

Q - Can I keep lodging AWAs? - What happens if I have made an AWA but have not lodged it before the Transition Bill commences?

AWAs made and lodged with the Workplace Authority before the commencement date of the Transition Bill will continue to operate until terminated or replaced. If you make an AWA with an employee before the Transition Bill commences, but have not lodged it with the Workplace Authority, you will need to lodge the AWA within 14 days after the commencement of the Transition Bill.

Q - Can I vary an AWA?

An existing AWA cannot be varied once the Transition Bill commences operation. An ITEA can replace an AWA subject to meeting the conditions required by the no disadvantage test (NDT – see below).

Q - What applies if the AWA is terminated?

If an AWA is terminated after the Transition Bill commences operation, the employee’s terms and conditions of employment will be covered by the appropriate collective agreement or in the absence of a collective agreement, the appropriate award.

Q - Can an employee on an AWA vote on a collective agreement?

After the Transition Bill commences operation, an employee on an AWA can vote on a collective agreement provided the AWA has passed its nominal expiry date. The collective agreement will not apply to the employee until after the AWA is terminated.

Employers should note that this is a significant change to what currently applies under the Act where it is not possible for an employee covered by an AWA to vote on a collective agreement. Under the Transition Bill an employee will be able to vote on the collective agreement (provided the AWA has passed its nominal expiry date) AND will then be covered by the collective agreement once the AWA has been terminated.

Individual Transitional Employment Agreements

Q - What is an ITEA?

An ITEA is a new form of individual agreement that can be made between an employer and one individual employee. An ITEA is only available for use during the transitional period and can only be used until 31 December 2009. An employer can only use the new ITEA if they had at least 1 employee engaged on an AWA or a pre-reform AWA as at 1 December 2007.

Q - Can ITEAs be offered to new as well as existing employees?

An ITEA can be offered to a new employee or to an existing employee provided the existing employee’s terms and conditions of employment are governed by an individual agreement such as an AWA, a pre-reform agreement or an individual preserved State agreement.

Before the Transition Bill passed in the Senate, the Government amended it to allow businesses to offer ITEAs to previous employees. This issue was of particular concern for members, especially those in the construction industry who often re-hire employees.

An ITEA will override an existing AWA. You can offer an ITEA to an existing employee whose AWA has not passed its nominal expiry date.

Q- Can I continue to offer ITEAs beyond the transitional period?

No. An ITEA can be made only until 31 December 2009. An ITEA that has reached its nominal expiry date will remain in force beyond this date until terminated or replaced.

Q - What can an ITEA contain?

The current restrictions on prohibited content (such as deductions from pay or wages for trade union subscriptions or dues; or bargaining fees to be paid to trade unions) under the Act will also apply to ITEAs. An ITEA will also need to meet the criteria in the no disadvantage test (NDT)(see below).

Q - When does the ITEA operate from?

Once it has passed the NDT, an ITEA for an existing employee will commence operation on the seventh day following an approval notice being issued by the Workplace Authority.

ITEAs for new employees will commence operation when lodged with the Workplace Authority, but would cease to operate if they later fail the NDT. In such circumstances compensation may be payable to employees and the employee would revert to the instrument that applied before the agreement was lodged.

Remember ITEAs cannot be offered until after the commencement of the Transition Bill.

Q - Can an employee on an ITEA vote on a collective agreement?

Yes - an employee on an ITEA (and existing AWAs) that has passed the nominal expiry date will be able to make and approve proposed collective agreements and be eligible to take part in ballots for protected industrial action.

Q - Can I make an ITEA a condition of employment?

Yes - it appears that ITEAs will be treated in the same way as AWAs and an offer of employment conditional upon signing an ITEA is acceptable.

You must enter into an ITEA with a prospective employee before employment commences.

However, you must enter into an ITEA with a new employee within 14 days of commencing employment and if you do not offer the ITEA to an employee until after they commence their employment it cannot be a condition of employment as they will need to be treated as an existing employee.

Q - Can I terminate the ITEA unilaterally?

Yes. An ITEA can be unilaterally terminated after it passes its nominal expiry date and with 90 days written notice.

Q - Does the fairness test apply to ITEAs?

The fairness test will be replaced by the NDT (see below). You also need to consider the changes to commencement dates as described above.

Collective agreement and Greenfields agreements

Q - What happens to current and new Collective agreements?

Current collective agreements do not change and continue for their full term.

New collective agreements will be required to pass the NDT instead of the fairness test and will commence operation on the seventh day following an approval notice being issued by the Workplace Authority.

Q - Are there any changes in the Transition Bill about Employer Greenfields Agreements?

It is important to note that there are no changes to employer greenfields agreements during the transition period. There is a new greenfield agreement making option called a multi-business greenfield agreement.

Q - Can I extend the period of operation of my pre-reform certified agreements and preserved state agreements?

Yes - the Transition Bill will allow the extension of pre-reform certified agreements and preserved state agreements in limited circumstances. It will allow an extension from the nominal expiry date of up to 3 years after the date on which the order is made by the Australian Industrial Relations Commission (AIRC).

No Disadvantage Test

Q - How will the NDT work?

ITEAs must not result, on balance, in a reduction in the employee's (or employees) overall terms and conditions of employment under any "reference instrument" (see below) relating to the employee(s).

In the case of an ITEA, a "reference instrument" is:

• A relevant collective instrument; or
• A relevant collective instrument and a relevant general instrument (see below) if they operate concurrently; or
• If there is no relevant collective instrument, a relevant general instrument; or
• If there is no relevant collective instrument or a relevant general instrument, a designated award.
• entering into a collective agreement, it must not result in an overall reduction in terms and conditions of employment under a reference instrument, which, in this case, is:
• A relevant general instrument; or
• If there is no relevant general instrument, a designated award.

A "relevant general instrument" is

• An award
• A transitional award
• A Notional Agreement Preserving a State Award (NAPSA)

One of these instruments will form the basis of the NDT even if it was not binding because it had ceased operating due to an earlier instrument coming into operation.

A reference instrument would also include a state or territory law that relates to long service leave that covers the employee.

Exceptional Circumstances: The Transition Bill will allow an employee collective agreement or union collective agreement to pass the no-disadvantage test where it would otherwise fail if the Workplace Authority is satisfied that due to exceptional circumstances, approval of the agreement would not be contrary to the public interest. These agreements will have a limited life of 2 years.

Award Designation: The Transition Bill allows the Workplace Authority to "designate" a federal award for ITEAs and collective agreements, in certain circumstances. The process appears similar to that of the fairness test.

The Transition Bill will remove the concept of 'protected award conditions' with the result that the whole award can be used as the basis for the NDT.

Award Modernisation

The Transition Bill confers powers on the AIRC to undertake the award modernisation process. The process will commence in the near future and awards are required to be modernised prior to the implementation of the Governments new system on 1 January 2010.

Awards will be underpinned by 10 National Employment Standards (NESs). They will be legislated and implemented from the commencement of the new system in January 2010.

The NES's are:

• Hours of work of 38 per week; comment: appears to be consistent with existing Standard;
• Parental leave of 12 months with right to request 24 months; comment: employers have the right to refuse a request on reasonable business grounds;
• A right for parents to request flexible work arrangements until their child reaches school age; comment: employers have the right to refuse a request on reasonable business grounds;
• Annual leave of 4 weeks; comment: appears to be consistent with the existing Standard;
• Personal and carers leave of 10 days plus 4 days combined paid and unpaid leave; comment: appears to be consistent with the existing Standard;
• Community service leave such as jury and emergency services leave; comment: catered for at State level (different entitlements) and no need for additional or possibly increased legislative standards;
• Public holidays as per state laws; comment: appears to be consistent with existing Standard though it would be inappropriate if Labor includes provisions preventing employees being required to work on a PH;
• Information statement on employment to every new employee; comment: emphasis appears to be on encouraging union membership and as such it is inappropriate;
• Termination notice up to 5 weeks and redundancy pay up to 16 weeks; comment: Notice appears to be consistent with existing minimum, proposed redundancy provisions will, however, have the effect of significantly extending entitlements;
• Nationally consistent long service leave; comment: currently significant inconsistency between states and so consistency may be costly if it results in levelling up.

Awards will be able to contain terms relating to:

• Minimum wages: this will include skill based classifications and career structures, incentive based payments and bonuses, wage rates and other arrangements for apprentices and trainees;
• The type of work performed including whether permanent, casual, and flexible working arrangements;
• Arrangements for when work is performed including hours of work, rostering, rest breaks, and meal breaks;
• Overtime;
• Penalty rates;
• Provisions for annualised wage or salary arrangements as an alternative to payment of penalties;
• Allowances;
• Leave, leave loadings;
• Superannuation; and
• Consultation, representation and dispute settling procedures.

Modern awards will also contain industry specific detail about the ten NESs and a flexibility clause.

Workplace Relations Fact Sheet

The requirement under WorkChoices to distribute the workplace relations fact sheet will be repealed. A new fact sheet will be developed by the Government as part of its substantive legislation which employers will be required to distribute when the new system commences in 2010.

Notional Agreements Preserving State Awards (NAPSAs)

These instruments are due to expire on 27 March 2009. The Transition Bill will extend NAPSAs until 31 December 2009.

Timing of changes

Q - When will we have new legislation?

The Transition Bill has passed through both Houses of Parliament and has been sent to the Governor-General for Royal Assent.

The Government is keen for the Transition Bill to commence as soon as possible and while no date has been set it is likely to commence soon after Easter.

The Labor Party's Policy Implementation Plan released on 28 August 2007 provides some further detail on its policy Forward with Fairness issued on 28 April.  Areas of detail are still missing, however, and likely to remain unknown until legislation is drafted should the ALP be elected to government after the federal election.

A summary of the current policy position combining details from both Forward with Fairness and the Policy Implementation Plan is set out below.

A national system

1. Labor will support a national system for the private sector; it has given State governments 2 opt outs - government employees would not be included and a State could "harmonise" at its discretion rather than actually referring power to the Commonwealth.  It appears local councils will also not be included.

CCI Comment

2. Both government and Labor should commit to a full national system.  It is wrong and wasteful to allow the States to use taxpayer money's to fund all the infrastructure of a State IR system just for government and local council employees.

3. The private sector wants an efficient public sector.  Industrial relations laws can drive efficiency and they should also be the same basic system for both.  The private sector also competes with the government sector in some commercial matters.  Different industrial relations frameworks can alter cost structures.

National employment standards - increased safety net

1. A combination of legislated minima and award minima will constitute a new safety net under Labor.

2. 10 legislative standards

• Hours of work of 38 per week; comment: appears to be consistent with existing Standard;
• Parental leave of 12 months with right to request 24 months; comment: employers have the right to refuse a request on reasonable business grounds;
• A right for parents to request flexible work arrangements until their child reaches school age; comment: employers have the right to refuse a request on reasonable business grounds;
• Annual leave of 4 weeks; comment: appears to be consistent with the existing Standard;
• Personal and carers leave of 10 days plus 4 days combined paid and unpaid leave; comment: appears to be consistent with the existing Standard;
• Community service leave such as jury and emergency services leave; comment: catered for at State level (different entitlements) and no need for additional or possibly increased legislative standards;
• Public holidays as per state laws; comment: appears to be consistent with existing Standard though it would be inappropriate if Labor includes provisions preventing employees being required to work on a PH;
• Information statement on employment to every new employee; comment: emphasis appears to be on encouraging union membership and as such it is inappropriate;
• Termination notice up to 5 weeks and redundancy pay up to 16 weeks; comment: Notice appears to be consistent with existing minimum, proposed redundancy provisions will, however,  have the effect of significantly extending entitlements;
• Nationally consistent long service leave; comment: currently significant inconsistency between states and so consistency may be costly if it results in levelling up.

3. Further 10 minimum award standards:

• Minimum wages: this will include skill based classifications and career structures, incentive based payments and bonuses, wage rates and other arrangements for apprentices and trainees;
• The type of work performed including whether permanent, casual, and flexible working arrangements;
• Arrangements for when work is performed including hours of work, rostering, rest breaks, and meal breaks;
• Overtime;
• Penalty rates;
• Provisions for annualised wage or salary arrangements as an alternative to payment of penalties;
• Allowances;
• Leave, leave loadings;
• Superannuation; and
• Consultation, representation and dispute settling procedures.

CCI comment 

4. The legislative standards will apply to all employees and are unchangeable.  They can be increased by orders of Fair Work Australia (FWA) in specific industries or occupations.

5. The combination of legislative standards and awards as proposed by Labor would return the system to the traditional features of centralized and industry wide regulation and arbitration that existed in the last century. 

6. The new bargaining obligations would be on top of that system and not in substitution for it.

AWAs

1. Labor will abolish the AWA system. It has confirmed there will be no statutory individual contracts. Common law contracts will apply for employees earning over $100,000 per year.

2. From 1 January 2010 awards will not apply to employees earning more than $100,000 p.a. for employees who agree their terms and conditions under a common law contract.

3. The $100,000 threshold will be the employee's guaranteed ordinary earnings. It will be indexed against annual growth in ordinary time earnings for full time adult employees. There are protections against artificial devices being used to inflate wages above this $100,000 threshold. For example "manifestly unreasonable rostered overtime hours" will not be considered where they take an employee’s remuneration over this threshold.

AWA Phasing out

4. AWAs will continue for their term.  The last possible expiry date for all AWA's is 31 December 2012.

Individual Transitional Employment Agreements (ITEAs)

5. ITEAs may be made between an employer who has any employee engaged on an AWA as at 1 December 2007 and a new employee or an existing employee whose terms and conditions are governed by an AWA. 

6. Any ITEA will expire no later than 31 December 2009.

7. An ITEA will be subject to a no-disadvantage test against the relevant award or collective agreement and AFPC Standard.

CCI comment

8. Common law contracts are not an effective or workable reform measure.  

• 95.1% of employees earn less than $100,000 per year. For every one of those employees common law contracts will be subject to the regulation of awards and the regulation of collective agreements.   This reinforces award coverage for the 95.1% of employees earning less than $100,000 per year.
• For the 4.9% of employees earning over $100,000 per year, common law agreements will be subject to the regulation of collective agreements and union rights under collective bargaining.
• For the 4.9% of employees earning over $100,000 per year, common law agreements will also be subject to Labor’s legislated employment standards - which Labor is increasing, thereby reducing flexibility. 
• Rarely, if ever, did the award system apply to employees earning over $100,000 per year. 
• Every employer of employees on common law agreements is exposed to strikes in support of collective bargaining demands every day a collective agreements exists (whereas under AWAs strike action was banned during the life of the AWA). In effect, the Labor announcement increases the days available for unions or employees to exercise a right to strike against a business. 
• There will be two classes of employees under different rules, and different rules if an employee gets a wage increase from $99,000 to $101,000 (for example), creating anomalies and confusion.  

Awards

1. Awards will not apply to employees earning over $100,000 per annum. They will be further simplified so they deal with only the ten matters described above and additional clauses that concern the application of the legislative conditions in particular industries. A process similar to the 1996 "award simplification" process appears to be suggested.

2. Labor will require "flexibility clauses" to be inserted into awards and collective agreements allowing individual agreements.  Individual agreements will be subject to a no-disadvantage test against the relevant award or collective agreement.

3. The modernisation and simplification process will commence from the time an incoming Labor government takes office (or 1 January 2008). Labor's aim is for the process to be mostly completed by the time the new system takes effect in January 2010.

4. The AIRC will be required to identify a priority list of key awards to be simplified within 12 months with all awards mainly completed within 2 years.

5. Priority will be given to industries and occupations with a high incidence of AWAs and NAPSAs.

6. Enterprise awards will continue in their current form and will only be reviewed where requested by the current parties to those awards.

7.  New simplified awards and national employment standards will commence operation from 1 January 2010.

CCI comment

8. There is potential for concern over the content of awards as many of the 10 award matters contain multiple concepts and therefore awards may continue as comprehensive, restrictive documents.

9. Flexibility clauses are not new and not an effective reform measure.

10.   Flexibility clauses were allowed in awards between 1993-2006. They were a failure because:

• unions generally intervene in award regulation to prevent amendments; 
• unions are part of the collective bargaining system; 
• industrial tribunals establish awards for collective purposes; 
• employers are deterred by the cost and expense of using formal award processes to seek permission to introduce flexibilities; 
• an example is that from a dozen individual flexibilities in awards sought by ACCI in the national work and family test case in 2005, they were all opposed by unions and all State Labor governments and not granted.

Collective Bargaining

1. Labor's policy would introduce a compulsory obligation on employers to collectively bargain, whether the employer wanted to bargain or not.
   
   
2. If the majority of employees in a workplace want to bargain collectively, the employer would have a statutory obligation to bargain collectively in good faith.
   
   
3. If the employer refused to bargain collectively the employees or their union would be able to apply to FWA for an order requiring the employer to bargain collectively.  Upon receipt of an application for a collective bargaining order, FWA would be obliged to determine whether collective bargaining is preferred by a majority of employees in the workplace.  It would have discretion regarding the method it uses to determine the level of support for collective bargaining, such as secret ballot.
   
   
4. Collective agreements would need to comply with the 10 legislated minimum conditions but would not need to comply with every condition in the relevant award as long as the employees are "better off overall".
   
   
5. Protected action would be available if approved by employees in a secret ballot supervised by FWA.
   
6. At the commencement of bargaining, employers would have an obligation to inform employees that they are entitled to be represented by a union.
   
   
7. Unions would be able to make demands on "whatever matters suit them".  They would therefore not be restricted to demands about wages and employment conditions.  The "prohibited content" provisions in the Workplace Relations Act 1996 would be repealed.   The High Court’s Electrolux decision that held that agreements could only contain, and strikes can only be taken over, matters pertaining to the employment relationship would be overturned.
   
8. Good faith bargaining would not require the employer to make concessions but if industrial action is causing significant harm to one of the parties (even if the party is inflicting the harm or damage), FWA would have the power to end the strike and arbitrate an outcome.
   
   
9. Compulsory bargaining such as is proposed by Labor has been examined by the Australian Industrial Relations Commission and rejected.  In the 1994 Asahi case a five member Full Bench expressed a strong view that it would not be sound policy for legislation to force parties to bargain.  The Full Bench expressed support for, and set out arguments why a voluntary bargaining system is appropriate. 
   
10. The AIRC expressed the view that "compulsion" and "bargaining" are incompatible holding that bargaining is voluntary and "an agreement cannot be reached with a person who does not want to agree and negotiations for an agreement cannot take place with a person who does not want to negotiate".

CCI comment

11. Put simply, not all businesses want to bargain to pay more, and not all businesses should be forced to do so.
    
12. Nor should 'good faith bargaining' require an employer to bargain with a union where the employees of the business are not union members and do not seek the involvement of the union.
    
13. Nor should good faith bargaining require employers to disclose against their will commercial information or material that is private to the business, or to disclose to uninvited unions staff employment contracts, or to give union officials with no union members right of entry to the business, or to force the employer to engage in time consuming meetings or red tape when the employer does intend to make or register agreements in the system.
    
14. Good faith bargaining should not (except in very limited circumstances) give an industrial tribunal a power to arbitrate the terms of the 'agreement' if the employer refuses the over award demands of unions or employees.
    
15. In summary, once 'good faith bargaining' forces employers to bargain, and once it forces over award arbitration on employers then it is not the benign concept it appears.  It becomes compulsory bargaining, and compulsory arbitration under the label of 'good faith bargaining'.  It affects rights and outcomes.  Compulsory union bargaining and compulsory union arbitration of above award wages and employment conditions does not concern 'good faith'.
    
16. It appears that a non-union agreement will not be an option for employers so long as they have one union member in their workforce.

Strikes

1. Labor's policy would allow strikes over matters that don't pertain to the employment relationship.  This is not current law.  It opens the prospect of strikes being taken over union matters and not purely wages and conditions of employment.
   
   
2. Areas where unions have in the past made bargaining demands over union matters that could potentially be included under Labor policy in the right to strike include:
• Preference in employment, promotion or redundancy to unionists;
• Paid trade union training leave;
• Restrictions on non union contractors;
• Restrictions on non union business restructuring (labour hire firms and outsourcing restricted without union approval);
• Compulsory union superannuation;
• Compulsory union insurance (employer pays income protection insurance of all employees from a union sponsored policy);
• Compulsory union payroll deductions;
• Union approval of site entry;
• Expanded union entry into businesses.

Right of entry

1. Labor says it will retain restrictions on union right of entry.

CCI comment

2. Current laws require at least 24 hours notice before entry.  It is not clear whether Labor will retain this as the policy announcement refers only to unions giving "proper notice".
   
3. Abolishing AWAs also abolishes current restrictions on union right of entry during the term of AWAs. Common law contracts may allow union entry for a wider range of purposes than was permitted under AWAs. 
   
4. Unions have used OHS laws made by State governments to get around right of entry restrictions.  This is a loophole not addressed by the Labor announcement.

Unfair dismissals

1. Labor policy removes the current small business exemption (less than 100 employees) from unfair dismissal laws.  
   
   
2. The only exemption concerns businesses employing fewer than fifteen employees. These businesses can still be the subject of an unfair dismissal claim but only in respect of an employee who has at least twelve months' service.
   
3. Labor also removes the following exemptions:
• Casual employed for a short period (ie less than 12 months)
• Fixed term employees;
• Fixed task employees;
• Probationary employees;
• Trainees/apprentices;
• Seasonal employees;
• Employees serving a qualified period of up to 6 months;
• Employees dismissed for genuine operational reasons.
  
  
4. Labor's system will have provision for Fair Work Australia to provide advice and assistance for small business and will facilitate the preparation of a fair dismissal code, the purpose of which is to provide small business owners with clear information in relation to dismissal.
   
5. Labor policy will require that claims be made within 7 days of dismissal (an improvement on current law of 14 days although extensions to time can be granted in appropriate cases).

Unfair dismissal procedure

6. Claims will be lodged with Fair Work Australia which will have multiple offices in shopping centres and Centrelink offices.
   
   
7. There will be a compulsory conference convened by FWA.  Employers and employees can be represented with a "representative or support person" but must attend in person and must directly answer questions.
   
   
8. FWA will rule on an issue in this informal way.  Orders can be made requiring re-employment or compensation.  There will be no written submissions, no hearing and no examination.  Neither the employee nor the employer will be put on oath to tell the truth.  There will be no lawyers involved.
   
9. Fair Work Australia will be able to rule on unlawful (discrimination based) dismissal claims.
   
   
10. Labor will develop a Fair Dismissal Code which it says will give certainty because it will tell small business when it can dismiss staff.   Where the Code is genuinely complied with, the policy says that the dismissal will be judged to be fair. 

CCI comment

11. A 12 month qualifying period as proposed by Labor is not the same as an exemption - staff or business problems can occur after 12 months. 
    
12. Governments writing the rules about when a business can dismiss staff has not been legislated before; while well intentioned, this change could backfire with governments regulating management decisions before dismissals; previously governments only regulated unfair dismissals, now government would be making rules covering all dismissals. 
    
13. Informality is a double edged sword and may deny natural justice.  Employers must attend, must answer questions, cannot be legally represented, cannot require the employee to sit in a court room and on oath tell the truth, cannot subject the process to public scrutiny and must accept a desk-top ruling by FWA that determines the matter and interferes with the employers legal rights and business management.
    
14. The Fair Dismissal Code is also a double edged sword.  If compliance with the Code means a dismissal is fair, then it would be likely that substantive non compliance would, in practice, mean a dismissal is prima facie unfair.  Labor does say that errors of a procedural or technical nature will not automatically presume a dismissal to be unfair.  The terms of the Code will therefore be significant in deciding if an employer can dismiss fairly.
    
15. The proposed accessibility of FWA may encourage more claims especially if it is placed in the same venue a dismissed employee applies for unemployment benefits (Centrelink).
    
    
16. The Code will, whatever the intention, be a regulatory document about employer conduct prior to dismissal.  This has not been the practice of the past where, for all the problems with unfair dismissal laws, the courts tried to objectively rule on fairness rather than substitute their decision or the decision of management.  The Code regulates the decision of management and could be seen as more intrusive than the former system.  This depends on how it is applied.

Australian Industrial Relations Commission

1. The AIRC will have responsibility for simplifying awards during the 2 year period from 1 January 2008 to 1 January 2010.
   
2. The AIRC will be abolished on 1 January 2010 and Fair Work Australia will commence operation.

CCI comment

3. It is important that the powers and role of the AIRC is the following areas continue:
• Revoking union official entry permits in cases of inappropriate behaviour;
• Suspending or terminating bargaining periods where industrial action is threatening to damage the economy or the welfare of the population and to prevent pattern bargaining;
• Suspending industrial action;
• Overseeing secret ballots to authorize industrial action;
• Overseeing registration of unions and employer associations; and
• Issuing orders to prevent and stop unlawful industrial action.
  
4. There is some doubt about the Constitutional legitimacy of Labor's proposed FWA.  The High Court in the 1956 Boilermakers Case found it was unconstitutional to have the same body creating rights as well as enforcing those rights.  As a consequence the AIRC has had the role of creating rights through awards and also dispute settlement and prevention while the role of enforcement of rights has been the role of the Federal Court.

New national body - Fair Work Australia

1. FWA is said to assume the functions of the AIRC, and expand those functions to include dispute conciliation and forms of safety net arbitration, unfair dismissal arbitration, good faith bargaining oversight, secret ballot oversight, regulating registered industrial organizations and in limited cases last-resort arbitration of collective agreements.
   
2. FWA will review minimum wages once each year with updated wages taking effect from the first pay period on or after 1 July each year.
   
3. FWA will also assume functions associated with collective agreement making (because of the proposed abolition of the Workplace Ombudsman) and minimum wage setting (because of the proposed abolition of the Australian Fair Pay Commission).  It will also undertake advisory and compliance functions (because of the proposed abolition of the Workplace Authority).
   
4. A separate independent division has been said to be established to exercise court-based judicial power.
   
5. FWA will have offices in suburbs and regional centres such as shopping centres and Centrelink offices.

CCI comment

6. FWA would be a powerful new national regulator.
   
7. Creating a powerful national regulator increases the prospect of greater regulation of wage and employment matters on both an industry basis and an enterprise basis.  Outcomes as well as process will be regulated and arbitrated.
   
8. In terms of conciliation FWA could:
• Conciliate disputes over agreement-making demands at the joint request of parties; and
• Conciliate unfair dismissal claims.
  
9. In terms of arbitration FWA could:
• Order if collective bargaining should occur (ie decide if a majority of employees seek collective bargaining);
• Make orders to enforce good faith collective bargaining obligations;
• Arbitrate agreements where industrial action is causing significant harm to the wider economy or community welfare;
• Arbitrate unfair dismissal claims;
• Arbitrate unlawful dismissal claims;
• Arbitrate(annually) minimum wages;
• Arbitrate (making, reviewing and simplifying) the award safety net;
• Conduct inquiries and recommendations (to government/parliament) on changes to the legislative safety net;
• Make orders to ensure freedom of association is protected; and
• Make administrative decisions whether to approve agreements.
  
10. In terms of advice, FWA could:
• Provide employees and employers advice, assistance and settle grievances';
• Advise whether agreements comply with Labor's "genuinely better off" test;
• Provide advice and guidance on "simple flexible agreements"; and
• Produce guidelines on family friendly workplace arrangements.
  
11. In terms of compliance, FWA could:
• Undertake general inspectorate functions (investigation, education, prosecution etc); and
• Establish specialist inspectorate divisions for the building and the hospitality industries.

Building industry regulation

1. Labor says building watchdog (ABCC) will be abolished in 2010 with current powers and resources until then.

CCI comment 

2. ABCC abolition retrograde and will damage industry and economy and should be retained  

3. Labor has only committed to retaining powers and resources "for this period" (ie until 2010) - no commitment by Labor to its new regulator having same powers or resources, only a commitment to "consult" on those matters and retention of the "principles of the current framework", meaning important detail (such as powers of the proposed regulator) are currently unknown.