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The following is a brief summary of the system of industrial relations in
Australia. As it is brief, a number of generalisations have been made. |
Each State of Australia has very wide powers to establish its own industrial system and system of industrial courts. All States except Victoria (which passed its powers to the Commonwealth in 1996, then taken back in 2000) have passed legislation to establish a variety of systems.
A hearing before the AIRC. Senior Deputy President Drake is hearing submissions from CEPU in a dispute concerning Telstra.
Her Honour's associate sits below her, with the Court monitor on the far left. Standing is CEPU's Steve Dodd while Laurie Chalker and Shane Murphy are "second chairs"
The Federal Government has the power to establish a system of industrial relations to regulate, by conciliation and arbitration only, industrial disputes that extend beyond the limits of one state. This requirement is set out in s51(xxxv) of our Constitution. If the Federal Government does establish legislation consistent with s51(xxxv), then it will take precedence over State legislation. (s109 of our Constitution).
The Federal Government has other powers in the Constitution which have been used to regulate industrial relations. These come from the following:
Since 1901, the system involved conciliation and arbitration.
Past legislation established the Industrial Relations Commission to settle interstate and some other industrial disputes. It also established an Industrial Court, to regulate organisations and to deal with industrial disputes.
The Liberal (Federal) Government passed the Workplace Relations Act 1996. The thrust of this Act is to more "flexible" workplace agreements. The Act reduces the relevance of unions significantly, making if more difficult for union members to establish collective agreements. Restrictions, fines and jail terms are the tools of the courts to restrict union activity.
The system will encourage individual employment agreements. As an example of cuteness of the new Act, individuals negotiating an individual contract are even given the right to strike. Further, the power of the AIRC is significantly reduced. Arbitration has been eliminated, except in exceptional circumstances.
The Industrial Relations Commission consists of a President, Vice Presidents and Commissioners. When a dispute arises, notice is given, usually by the employer, to the Commission. A hearing is quickly arranged and one member of the Commission will hear the matter. In important matters, three or more members of the Commission will hear the matter. Most decisions are open to appeal to a Full Bench of the Commission.
In settling disputes, the Commission has (since 1996) limited power to makes Awards. These Awards are laws of Australia, and must be obeyed.
Two types of Awards generally exist.
The first is minimum rates awards. Minimum rates awards are the most
common and are awards where minimum rates of pay are set. Actual rates of
pay normally include over-award payments.
The second type is paid rates Awards. The actual pay rates are those set out in the Award.
Telecom, Australia Post and the Federal Public Service have paid rates awards. Optus and Visionstream have a minimum rates Award.
In the past National Wage Cases determined pay increases which were applied to all Awards. These were often based on the increase in the Consumer Price Index. Pay increases outside the National Wage increases were difficult to achieve as strict criteria existed (eg work value, anomalies and inequities).
There has been a dramatic shift from National Wage Cases to Enterprise Bargaining. Virtually no rules apply. Any increase can be negotiated with an employer. The difficulty is reaching agreement with the employer. If no agreement can be reached, there will be no pay increase!
1988 Act
Once a union has reached agreement, this can be registered as an Enterprise Agreement (EA). Another type of agreement is an Enterprise Flexibility Agreement (EFA). This agreement does not require Union agreement and is the subject of much debate.
The Industrial Relations Court has a number of functions, including power to order reinstatement after dismissal, or to award damages if an employee is unlawfully terminated.
1996 Act
Three types of agreements exist. They are:
Australian Workplace Agreements (s170VA) These are individual contracts with workers, negotiated without a union and are effectively secret agreements.
AWARDS DESCRIPTION GENERALLY
This is a very brief description of the Award status.
Awards are simply Laws of Australia. Like other laws there are penalties for breach of the laws.
The Federal Parliament has delegated some of its law making powers to a body called the Industrial Relations Commission (IRC). The IRC makes laws called Awards. To make an Award, parties approach the IRC seeking an Award.
The Awards contain laws to deal with salary and conditions of service. eg there is a clause in the Telecom Award dealing with overtime. This is a law. It is an offence for an employer not to pay overtime when the employer knows or should know that an employee has worked overtime. It is an offence to induce an employee to breach an award.
ENTERPRISE AGREEMENTS
In recent years, Employers and Unions have had the ability to negotiate agreements. These agreements are registered in the IRC and become laws of Australia.
The Enterprise Agreements supplement the Award system and when there is a conflict between an Award and an agreement, the Agreement prevails.
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