WITH A Federal election likely to take place later this year, employers remain in limbo over the future of the WorkChoices regime, experts have warned.
In the event of an election win by the Australian Labor Party, the status of Australian Workplace Agreements (AWAs) has been shrouded in confusion.
Deputy Federal Labor Leader and Shadow Minister for Industrial Relations, Julia Gillard, has publicly stated the ALP will repeal the WorkChoices Act should it win the election. However, questions surrounding representation rights of unions and third parties, the role of the industrial relations commission in resolving disputes and whether AWAs face complete abolishment, remain unanswered.
“It is unclear whether the ALP is abolishing the Workplace Relations Act entirely, or just abolishing those amendments made by the WorkChoices Act. This means it is very difficult for legal advisors and employers to realise what's going to happen,” said Daniel Sleeman of Swaab Attorneys.
Sleeman claimed it was unlikely the ALP would repeal all of WorkChoices as that would mean they would return to the Workplace Relations Act in which case AWAs would still be in place.
However, the prohibition of making new AWAs after a set period of time is predicted.
“We do know enough to say, with some confidence, that the ALP will prohibit the making of new AWAs after a certain point if they win the next election and get the balance of power. They will not rip up AWAs which are already in operation, although they have indicated there might be a [possibility] for people on AWAs to get out of them,” said Sleeman.
The reasoning behind the ALP's intentions to abolish WorkChoices arises from statistics that prove the new IR laws are a disadvantage to Australian workers in general and women, statistics Gillard claimed the Federal Government have tried to cover up.
“The Howard Government cannot continue to wax lyrical about Australian Workplace Agreements while covering up their details and the impact they are having on Australian working families,” she said.
Gillard quoted the findings of the Senate Estimates in May 2006 at the Office of Employment Advocate (OEA), which provided an analysis of AWAs.
“The analysis revealed that 100 per cent had removed at least one protected award condition. More than 60 per cent of them took away penalty rates. More than 50 per cent of them took away shift work loading … The OEA has refused to provide the same information ever since,” she added.
In response, Minister for Employment and Workplace Relations, Joe Hockey, said the data from the Australian Bureau of Statistics, Employee Earnings and Hours taken in May last year — only two months into WorkChoices reforms — provided good news for workers.
“The earnings of employees on AWAs increased to $26.40 per hour and $949.60 per week in May 2006. People employed on AWAs earn nine per cent more every week than employees on registered collective agreements ($871.20) and 94 per cent more than employees on awards ($488.70),” he said.
Gillard has indicated the ALP will enforce the use of common law contracts.
According to Sleeman common law contracts, which will be very unique, could be used as a means of replacing awards.
Owing to the fact that one million people are currently signed up on AWAs, he believes it would be a logistical nightmare to try and create any overwhelming change on workplace agreements.
“I think it is going to petrify a lot of employers who are trying to implement AWA strategies now or want to in the future,” Sleeman said.
“From an employer perspective, the figure of ALP removing AWAs removes an important option for them which they desperately needed.”
In effect, Sleeman suggests that employers seeking to implement AWAs do so sooner rather than later.
“If there are employers out there who are either using or intend to use AWAs they should get moving on those — so long as they know why they are using them — and start to consider their options.”