A Rudd Labor Government’s IR system will provide a safety net comprising 10 legislated minima, plus up to 10 further minimum conditions within awards, the Opposition has announced. Labor’s IR policy, forward with Fairness, released by the newly elected Prime Minister Kevin Rudd at the ALP’s national conference in Sydney last April, provides that the 10 minima (the National Employment Standards) would be guaranteed, and couldn’t be contracted out of by agreement. The policy says the safety net will underpin both the proposed collective bargaining system and common law agreements.

In the policy document, released just before delegates unanimously endorsed the ALP IR platform, Labor spells out its position on minimum conditions, good faith bargaining obligations, a “majority rules” system where employers decline to collectively bargain, minimum wage review arrangements, award simplification and rationalization, a new no-disadvantage test, agreement making and industrial action.

It also explains the functions of the new industrial umpire, Fair Work Australia, and reiterates Labor’s commitment to a national IR system, to be achieved by legislation that will rely on all available constitutional powers.

Ten minima legislated and ten in awards

The policy provides for the following minima to apply to all employees, “regardless of their industry and occupation”:

  1. Hours of work – including a standard 38 hour week for full time employees, with provision for requiring employees to work additional hours, but not unreasonable additional hours;
  2. Parental Leave – parents to have a right to separate periods of 12 months unpaid leave, up to a total of 24 months (if parents want one parent to take a further 12 months after they have taken the first 12 months, then they must make a request, with employers only able to refuse such requests on reasonable business grounds);
  3. Flexible work for parents – reinstates the former “right to request” flexible work until children reach school age, with employers only able to refuse on reasonable business grounds;
  4. Annual leave – four weeks paid annual leave for full-time employees, pro rata leave for part time employees and an additional week’s leave for shift workers;
  5. Personal, carer’s and compassionate leave – 10 days a year of paid personal/carer’s leave for full-time employees (pro rata for part-timers), plus two days a year of paid compassionate leave on the death or serious illness of a family member or a person the employee lives with, plus two days a year of unpaid personal leave for “genuine caring purposes” and family emergencies;
  6. Community service leave – paid leave for prescribed community service activities, such as paid leave for jury service and reasonable unpaid leave for emergency service duties;
  7. Public holidays – guarantees eight national public holidays (Christmas Day, Boxing Day, New year’s Day, Australia Day, Anzac Day, Queen’s Birthday, Good Friday and Easter Monday), plus public holidays prescribed in State law (such as Labour Day, Easter Saturday and Easter Tuesday) and local public holidays such as cup days;
  8. Provision of information in the workplace – employers to provide all new employees with a Fair Work Information Statement containing prescribed information about rights and entitlements, including the right to choose whether to be a member of a union and where to seek information and help;
  9. Termination of employment and redundancy – up to four weeks notice (progressing from one week for employees with less than 12 months service to four weeks for workers with more than five years service) for all employees plus an extra week for workers aged over 45. Employees in workplaces with 15 or more employees are also entitled to severance pay of up to 16 weeks after 9 years service and 12 weeks after 10 years service (the standard arising from the 2004 Redundancy Test Case, which applied before Work Choices); and
  10. Long service leave – as a transitional step to a national standard on long service leave, entitlements will reflect arrangements in current State laws or federal awards or agreements, while employees who accrue leave under the transitional arrangements won’t be disadvantaged.

Labor will provide for Fair Work Australia to recommend, of its own motion and not on application by parties, changes to the National Employment Standards if warranted.

Up to ten more minima in awards

Awards – industry, occupational or enterprise – will be able to contain the following 10 standards:

  1. Minimum wages – including skill-based classifications and career structures, incentive-based payments and bonuses, wage rates, and arrangements for apprentices and trainees;
  2. Type of work performed – permanent or casual, facilitative provisions for flexible work (particularly for employees with family responsibilities), including “quality” part-time work;
  3. Arrangements for when work is performed – hours of work, rostering, rest breaks and meal breaks;
  4. Overtime rates
  5. Penalty rates – for employees working “unsocial, irregular or unpredictable” hours or working weekends, public holidays or shifts;
  6. Annualised wage or salary arrangements – that provide for pay to adjust to take into account patterns of work in an occupation, industry or enterprise an alternative to paying penalty rates, “with appropriate safeguards to ensure individual employees are not disadvantaged”;
  7. Allowances – including reimbursement of expenses, higher duties and disability payments;
  8. Leave and leave loadings – including arrangements for taking leave;
  9. Superannuation – and
  10. Consultation, representation and dispute settling processes.

Labor would also simplify and rationalize awards, but says it is retaining them to provide minimum terms and conditions that are specific to particular industries, occupations or enterprises.

Award coverage would not be extended to those who are award-free, such as managers, but IR Minister Julia Gillard made it clear that FWA would have the power to make new awards, such as for a new industry that might emerge. FWA would be required to review awards every four years to ensure they remained relevant.

BOOT benchmarked against legislated standards, or legislated standards plus award

The ALP’s proposed no disadvantage test for agreement making – the “better off overall test” (BOOT), will be applied solely to the 10 legislated minima where there is no relevant award.

But when there is an award, it will be applied against both the legislated and award standards. The BOOT will be a global test, Gillard confirmed.

Fast turnaround for agreements; terms to be reduced to four years

Fair Work Australia would be required to approve agreements “on the papers” within 7 days of lodgment. It will be able to seek further information from parties.

It would only be able to reject a deal if it fails the BOOT or wasn’t genuinely agreed to or approved.

Agreements would have a maximum term of four years (down from five years under Work Choices, but up on the three-year maximum that applied before it and under the former Labor Government’s bargaining regime).

Content would no longer be so restricted, on the basis that if parties bargained in good faith and made an agreement, “they should be free to do so without the need for government intervention or to comply with complex procedural rules and requirements”.

Three types of agreements

Under Labor, there will be three types of agreements:

  • Union collective;
  • Non-union collective; and
  • Union collective Greenfields.

As expected, AWAs will be axed.

Good faith bargaining obligations spelt out

Labor says participants in bargaining would be obliged to do so in good faith. It says the following would be the “simple” obligations:

  • Attending and participating in meetings at reasonable times;
  • Disclosing relevant information in a timely manner, although information that is “commercial in confidence” will be protected;
  • Responding in a timely manner to proposals made by another party;
  • Giving genuine consideration to other parties’ needs an providing reasons for responses; and
  • Refraining from “capricious or unfair” conduct that undermines freedom of association or collective bargaining.

The good faith obligations wouldn’t require employers or employees to sign up if they couldn’t reach agreement, and if that occurred, participants could:

  1. agree to walk away, and existing agreements remain in force;
  2. make a joint request to the FWA to help them reach agreement or determine particular matters; or
  3. take protected industrial action (in certain circumstances).

When a majority of employees want to bargain collectively, “and this choice is not respected by their employer” then their employer would be required to bargain in good faith.

Under Labor’s laws, FWA would be able to gauge the level of support at the workplace, by “for example using evidence of union membership, petitions or a secret ballot of employees”.

Industrial action only during good faith bargaining

The policy says industrial action could be taken during good faith bargaining, but only after a “simple and fair” secret ballot supervised by FWA.

Employers would be able to lockout employees as a response to industrial action. FWA would have the power to end industrial action if is causing significant harm to bargaining participants, the wider economy or the safety or welfare of the community.

As telegraphed by Labor, strike pay would be prohibited, as would industrial action during the term of an agreement.

Gillard also:

  • told journalists that she was still conducting consultations about transitional provisions for AWAs, and an announcement on that was more than a month away;
  • said that Labor’s platform contained an “aspiration” to reach 16 weeks paid maternity leave. The party doesn’t have an election policy on paid maternity leave yet, she said, but would be looking at options for funding.