Bulletin #13, October 2005

What WorkChoices could really mean for you

Unless you’ve been living under a rock you will have all seen the government advertising campaign for the new industrial relations “reforms”. The government has been spending up big to make sure you know all about WorkChoices.

They are ads that make the option of living under a rock increasingly attractive.

There is one thing about the ads that we love and that reminds us of a very famous local government story. Some years ago at Ballina Council, someone brought a home-made cake in as part of a farewell.

If memory serves us well (and this is no admission of short-term memory problems), we think it was a pineapple cake.

Whatever sort of cake it was, it had an ingredient not normally found in Mrs Beeton’s or Margaret Fulton’s recipes. Yes, it was a herbal addition – a herb not uncommon in Nimbin, Byron or, apparently, in Ballina.

Some of those who had the cake felt disarmingly charming that afternoon. Some couldn’t understand why they felt so good but they all realised that they were happy, happy Ballina employees.

All those smiling workers on the WorkChoices ad brings these happy Ballina workers to mind. Of course, the happy workers on tv were actually actors.

No-one who knows what is likely to be in this awful and dangerous legislation could be remotely happy. More alarmed than alert.

.The advertising is a little premature since the Workplace Relations Amendment (WorkChoices) Bill 2005 will not be introduced into Parliament until sometime in the week beginning 31 October. Until then, we can only speculate based on what members of the Government have been prepared to confess to and what appears in the booklets issued by the Government.

A senate inquiry is already accepting submissions for the unseen Bill so there may be changes before the Bill is accepted.

Despite the lack of detail, last week a series of briefings were held by the Unions NSW (the new name for Labor Council) for union officials to discuss the limited details in the WorkChoices booklets.

Outlined below is a summary of what we are expecting to happen to the Local Government (State) Award. This award covers most employees in the industry and variations of it appear in the enterprise agreements or awards at Sydney, Newcastle, Wollongong, Lake Macquarie and Orange.

Once the Bill is released, and we can actually examine the legislation, more information will be provided to depa members in late November.

What happens to the Award?

At the moment it seems that the Award will become a federal transitional agreement. A transitional agreement will expire after three years and cannot be changed.

The new Fair Pay Commission will set legislation for minimum conditions outside of any agreement.

The minimum conditions cover

• Annual Leave
• Parental Leave
• Personal/Carer's Leave
• 38-hour ordinary time.

Since our entitlements in the Local Government (State) Award are more than these minimum conditions, they will apply for the three years until the transitional agreement expires.

After the three years, clauses become open to negotiation and can be removed, as long as they don’t fall below the new standards.

Certain clauses now in the Award immediately become “non allowable matters”. As soon as the Award becomes a transitional agreementthese clauses are no longer enforceable.

For the Local Government (State) Award the non-allowable clauses seem to include:

• Clause 7 and 8 on Salary System and Use of Skills
• Clause 18 G (iii) and (iv) for Union Training Leave and Union Conference Leave
• Clause 24 Junior and Trainee Employment will have to change because it will not be allowable to have any restriction on the range or duration of training arrangements.
• Redundancy (Clause 34) may change to be only allowable if there is no alternative employment (even at lower pay). This will remove the right that currently exists to elect to take redundancy if the Council can’t give you another position that is of “comparable skill and accountability levels” to the poison originally held.
• Union Picnic Day – the end of the depa Golf Day!
• NAIDOC Holidays for Aboriginal and Torres Strait Islanders.

Eventually there will also be a phasing out of jury service, superannuation, long service leave and notice of termination clauses, although there is no detail on when this is to happen, or how.

After three transition years you will be covered by one of these:

• A union collective agreement (i.e. depa either separately or with the other local government unions negotiates for you)
• An employee collective agreement
• Multiple employer agreement
• An Australian Workplace Agreement (AWA)

If no agreement can be reached the fallback is the simply the minimum standards, not the existing Award.

It is worrying to note that AWAs will not be read in conjunction with an Award, but will override Awards entirely.

It will not be allowable to enforce matters relating to “skill based career paths”. Although this is very unclear at present, it seems that this will be referred to the Award Review Taskforce to examine the classification of wage structures.

Specific legislation will now cover the hours of work. There will be no standard week. While 38 hours is now the legally defined “ordinary working hours”, this can be averaged over twelve months!

We don’t know what will happen to industries like local government with a 35 hour week.

There is a so-called protection against “unreasonable hours” which enables employees to refuse unreasonable additional hours on the ground of risk to safety and welfare, family responsibilities etc.

This will may be hard, if not impossible to enforce, given the averaging of hours occurs over a full twelve months and the Government will be doing what they can to stop your union acting on your behalf and running disputes about this sort of the thing in the Commission – or whatever is left of the Commission.

We could lose the current clauses outlining the spread of work. They will still remain allowable matters for an agreement but can be signed away as long as they meet the minimum condition of the Fair Pay Commission.

Nine day fortnights, nineteen day months etc will be less enforceable and we won’t be able to contest things like Councils removing entitlements without going through the procedural steps required now by the Award.

Awards and agreements can still cover additional overtime payments but again, it will be hard to know what classes as overtime with the averaging rule in place and these clauses can be signed away in an agreement.

Annual leave entitlements can be removed from awards and agreements. The new standard will be four weeks with an option to cash out two weeks. An additional week for certain shift workers will exist for those in 24x7 workplaces who work weekends.

Clauses mentioning union picnic days will now be prohibited. This means the end of the picnic day as soon as the WorkChoice Bill is passed.

We could, after the three years, lose

Clause A - Sick Leave,

Clause B - Carer’s Leave,

Clause C - Annual Leave

Clause E - Paid Maternity Leave.

They will be open to negotiation.

The Fair Pay Commission legislation sets paid Personal Leave at 10 days per annum. This accumulates for personal sickness, but is capped at 10 days per annum for caring purposes.

There are provisions resulting form the Family Provisions case – unpaid leave when paid leave is exhausted, extended purposes of caring leave.

There is also compassionate leave of two days paid per occasion of death or serious illness.

These will be the new standards, and new agreements do not have to provide anything over and beyond this.

In the long term Clause D (Long Service Leave), and Clause G (Other Leave) may also be phased out.

A new model Dispute Settlement Procedure will be introduced. The details aren’t clear yet but there will be no mandatory union involvement or compulsory role for the Commission. If an agreement does specifically mention arbitration then the model clause will apply by default and the intention is to resolve all disputes at the workplace level or via mediation, not arbitration.

At the moment a case can be made for redundancy if there is no similar position at a similar level. This may be changed to allow only for “genuine” redundancy meaning you could be offered a job at a lower level and if you choose not to accept this job become ineligible for a redundancy payout.