WorkChoice or WhatChoice
UP to 85 per cent of Australian workers will be affected by the new WorkChoices legislation that became effective this week, according to Michael Fishburn.
The partner at law firm Fishburn Watson O'Brien said WorkChoices would include all employees working for incorporated companies, Australian government bodies, and under State awards or agreements for what is known as 'Constitutional Corporations'.
Employees of unincorporated businesses are unaffected.
For people working under awards, a minimum wage and basic entitlements such as annual leave, personal or carer's leave, and parental leave will be guaranteed by law under the new Fair Pay and Conditions Standard (FPCS).
"If their award differs from the standard, the more generous of the two will apply," Mr Fishburn explained.
"Entitlements to conditions such as rest breaks, public holidays, incentive payments, bonuses, annual leave loadings, allowances and overtime loadings will continue for employees on existing awards for three years.
"These can be subject to workplace bargaining, although they can only be modified or removed by specific provisions in an agreement."
If these entitlements are not mentioned in the agree- ment then the award provisions will continue to operate.
For employees who work under workplace agreements, all the working conditions and entitlements negotiated will remain (except clauses that inhibit parties' ability to bargain), providing they are more beneficial than minimum entitlements prescribed under the FPCS.
Mr Fishburn said one issue people were concerned about was the exclusion of unfair dismissal laws for employers with 100 employees or less.
"Even in such cases, under WorkChoices, it will continue to be unlawful for an employer to terminate a person on certain grounds including discrimination, absence due to illness or injury, trade union membership, or absence from work during maternity or parental leave," he said.
"Employees who believe they were unlawfully dismissed may apply to the Australian Industrial Relations Commission, possibly with financial assistance of up to $4000 if their income is less than $47,745 per year."
He added this aimed to encourage small business to employ more staff without the fear of facing unfair dismissal proceedings if the employment did not work out.
Other features of the new legislation include an increase to 10 days per annum of personal/carer's/compassionate leave and confirmation of a 38 hour working week, which can be averaged over a 12month period.
"Given the possible flexibility of the new system, WorkChoices requires employers to keep more extensive employee records, including actual hours worked for all employees, including managerial staff hours, as many nonaward employees regularly work well in excess of 38 hours weekly," Mr Fishburn said.
"In such cases, it is imperative that employment contracts be documented so as to avoid the possibility of future disputes."
Fishburn Watson O'Brien have produced an information kit on WorkChoices that is available free of charge from their office at 134 West High Street, Coffs Harbour.
Unions say unskilled workers will be the most badly affected by WorkChoices as they have less bargaining power.or WhatChoice.
It is likely to be many years before we see the full effect of the Federal Government's WorkChoices legislation which came into effect on Monday.
But while debate in parliament was stifled, there has been plenty out in the real world.
Workers from around the country have complained of being sacked in the few days since the laws ? which remove protection from unfair dismissal ? came into effect.
"Another day, more unfair dismissals, again underlining the point . . . that under John Howard's extreme industrial relations proposals, you can be sacked, sacked unfairly for any reason or no reason," opposition workplace relations spokesman Stephen Smith said.
Prime Minister John Howard has accused Labor and the unions of using the workers to run a scare campaign.
But Federal Workplace Relations Minister Kevin Andrews admitted that workers could be sacked because of a personality clash with their boss.
The Federal Government and business say these changes are going to simplify the system, increase wages, and improve the economy and living standards.
The unions and opposition say workers will suffer, losing job security, penalty rates and other conditions, and any bargaining power they may have had.
Time will tell.
KEY FACTS ABOUT WORKCHOICES
Employers can decline to employ someone who does not sign an individual contract. All new agreements must include minimum stan- dards and cannot include 'prohibited content'.
Five minimum conditions of employment, known as Fair Pay and Conditions Standard (FPCS) are: minimum wage of $484.40, four weeks annual leave, ordinary time of 38 hours hours of work per week (which can be averaged over 12 months), 12 months unpaid parental leave between parents, personal/carers leave of 10 paid days per year, requirement to work 'reasonable' overtime.
Prohibited content means agreements cannot include clauses that: stop employers from offering Australian Workplace Agreements (AWA); restrict use of independent contractors or on-hire arrangements; allow for industrial action during agreement; provide for trade union training leave, bargaining fees to unions or paid union meetings; provide that any future agreements must be a union collective agreement; mandate union involvement to resolve disputes; provide for unfair dismissal. Unions or employees can be fined $33,000 for trying to negotiate for prohibited content.
Penalty rates, overtime, allowances, career structures, some public holidays and redundan- cy pay to be negotiated.
Long-service leave, non-compulsory superannuation, jury service and notice of termination provisions to be removed from awards.
Australian Fair Pay Commission (AFPC) will take over the power to set minimum award rates from the Australian Industrial Relations Commission (AIRC).
Award Review Taskforce (ART) will rationalise and simplify award classification struc- tures.
Awards will no longer contain minimum wages and classifications structure, which will instead be contained in Australian Pay and Classification Scales (APCS) and administered by the AFPC.
Workers and businesses in the State framework that are constitutional corporations will move to the Federal system and will be cov- ered by WorkChoices.
Employers in the Federal system that are not constitutional corporations will have five years to become so.
Individual contracts, AWAs, will last five years rather than three.
Businesses employing 100 workers or less will be exempt from unfair dismissal laws, but employees can still bring unlawful dismissal action if they can prove employers has behaved illegally.
Secret ballots will be required before protected industrial action can be taken, and against which employers can object.