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News News ALP announces details of IR policy today
An ALP Government will remove employees earning $100,000 from the awards system; retain Work Choices' right of entry and pattern bargaining provisions; keep the secondary boycott laws in the Trade Practices Act; complete the bulk of its award simplification process in two years; allow AWAs to run their full five year-terms; and allow employers in AWA workplaces to continue to offer them to new workers during a transition period, Opposition Leader Kevin Rudd and Deputy Leader Julia Gillard announced today.

If it wins office in this year's federal election, the ALP will move almost immediately to introduce a bill covering transitional arrangements for agreement-making, with the aim of having it implemented early next year. At the same time, it will arrange for the AIRC to commence a two-year award modernisation and simplification process starting January 1, 2008.

Under its policy implementation plan for Forward with Fairness - released in Canberra by Rudd and Gillard today - the ALP's new simplified awards and its 10 new standards would then commence on January 1, 2010 - when Fair Work Australia would also begin to operate.

Throughout 2008/09, meanwhile, the party would continue to consult on its substantive IR legislation, which it would want operating in 2009.

The ALP's policy implementation plan, in addition to outlining its transitional arrangements for agreement making, provides the detail missing from Forward with Fairness, which Gillard specified at the time was intended as a policy framework only.

While some of the measures announced were expected, Gillard has certainly gone further than anticipated in curbing unions' ability to organise and bargaining by keeping key provisions of Work Choices. On top of her her previous announcements on retaining the ABCC until 2010 and taking a tough line on industrial action, she today also made clear that she would keep the Work Choices' right of entry provisions that unions hate; outlaw pattern bargaining; keep the current arrangements for seeking orders against unlawful industrial action; and leave the secondary boycott laws in the Trade Practices Act.

Under the Forward with Fairness implementation plan, existing AWAs will run their full course - which could be up to five years. As with Work Choices, the statutory individual contracts will only be able to be terminated either by agreement between the parties during their term or by one party giving 90 days notice after the nominal expiry date.

While Gillard and Rudd both acknowledged today that this meant even pr-fairness test deals would continue under a Labor Government, Rudd said the party was conscious of the fact that businesses had entered into them in good faith based on the IR laws of the day.
Also, Gillard said some businesses that had never employed people in any other way than
on AWAs may not even be aware of the applicable industrial award.

Under the ALP's transitional provisions, businesses currently using AWAs will be able to continue offering them to new starters over the two year period until the start of 2010, but on the basis that they expire on December 31, 2009. The new ALP AWAs will be called
Individual Transitional Employment Agreements (ITEAs), and will only be able to be made between an employer who has an employee on an AWA as at December 1, 2007, and with a new employee or an existing employee on an AWA. The ITEA cannot disadvantage the employee against a collective agreement applying to the work the new employee would perform at the workplace, or, where there is no collective agreement, the applicable award and the Work Choices minimum conditions.

High income earners
The ALP will legislate to remove high income earners from its simplified award system, which will commence on January 1, 2010. That means employers will be able to offer those workers common law contracts that are not underpinned in any way by award conditions - though they will still be subject to the ALP's 10 minimum standards.

The decision to exempt employees earning $100,000 from awards is largely a response to opposition from resource sector companies to the party's decision to abolish AWAs, but it was immediately criticised by AMMA chief executive Steve Knott, who said 65% of mining workers earned below the $100,000 threshold and would therefore be denied access to the new arrangement. He also said the ALP's plan would introduce two streams of employment arrangements where there was previously a single system and would, he said, create disharmony.

Both Rudd and Gillard today said the $100,000 threshold was chosen after a long period of consultation with unions and employers, and on the basis that employees earning six-figure salaries were likely to be in a position to look after themselves.

The ALP's implementation plan says the $100,000 will be calculated on the employee's guaranteed ordinary earnings, indexed to annual growth in ordinary time earnings for fulltime adult employees. This would include the pay received for ordinary hours of work, guaranteed overtime and any other monetary allowances that are a guaranteed part of normal remuneration arrangements. Gillard told journalists it would not include, for example, superannuation, or bonuses as they were not guaranteed.

If an employee earning more than $100,000was employed under award conditions rather than an AWA, they could stay under existing arrangements, or move to the new Labor system.

AMMA also, as expected, lost out on its push to exclude AWA employees who transitioned to common law contracts from taking industrial action. Gillard told journalists that employees did not get their right to strike from their award coverage, but through the bargaining provisions in IR legislation, so it was not affected if they were removed from the award.

She also said unions would retain any existing right of entry over those employees, but legal sources contacted by Workplace Express disagreed. They said that while that was the case when right of entry was being exercised over breaches of industrial instruments, the Work Choices 760 right of entry for discussion purposes - unions' key recruitment tool - stemmed from award coverage and would thus not apply to award-reliant high income employees.

Under the ALP's award modernisation and simplification plan, the AIRC will identify a priority list of key awards that will be simplified within a 12 months, with the aim of having the process "overwhelmingly completed" within two years. Priority will be given to industries and occupations currently covered by instruments that will not be a feature of Labor's IR system. This includes industries with high numbers of AWAs and industries and occupations covered by commonly used old state awards (now NAPSAs).

The process will involve the AIRC receiving submissions and hearing from those who will be affected and considering:
which industries and occupations require separate awards;
how minimum terms and conditions for Labor's 10 award matters can be set for particular industries and occupations;
how details of Labor's national employment standards can be provided on an industry/occupation basis;
which industries and employers have extensively used AWAs to override prescriptive and complex award terms;
how to address state awards that currently apply to federal system employers and employees as NAPSAs or preserved state agreements; and
family friendly provisions.

In a move that both employers and unions will welcome, Labor will instruct the AIRC to only review enterprise awards where requested by the parties.

In addition to its award simplification plan, the ALP plans to introduce greater workplace flexibility by legislating for all awards to include a model flexibility clause - subject to industry adaption where required - which the AIRC will develop as part of the award simplification and modernisation process. The AIRC would ensure it could not be used to disadvantage individual employees. Gillard said the parameters within which flexibility arrangements could be used under such a clause may include rostering and hours of work; all up rates of pay; provisions that certain award conditions may not apply at a salary threshold; and early start and finish times for work/life balance purposes.

If an individual flexibility arrangement is made, the employer and employee will have to put it in writing and a copy must be given to the employee. They will be able to have Fair Work Australia check it to ensure it has complied with the flexibility clause of the award.

Collective deals
Labor will also require all collective agreements to contain a flexibility clause that allows for individual arrangements.

Pattern bargaining
Forward with Fairness made it clear that if the ALP were elected, industrial action in support of an industry-wide claim would not be protected, but it did not specifically state that it would outlaw industrial action in pursuit of pattern claims served at an enterprise-by-enterprise level - a grey area the Coalition has since exploited.

Gillard today dispelled any doubts, making it clear that the ALP would keep the Work Choices prohibitions on pattern bargaining. As is the case now, it would not be unlawful under an ALP Government to serve common claims across enterprises, but it would be unlawful to take industrial action in support of those claims. The Coalition introduced the pattern bargaining prohibitions largely as a result of AiG lobbying in the wake of the metal industry unions' industry-wide campaigns in 2003 and 2006 in the manufacturing sector, and they presented major obstacles to unions' bid to mount a coordinated campaign last year.

Secondary boycotts
In another move that will be unpopular with unions, Gillard today announced that secondary boycott provisions would stay in the Trade Practices Act, giving employers immediate access to the courts if alleged breaches occur.

Industrial action
The ALP has already has spelt out its tough rules on industrial action, including requiring secret ballots and limiting it to protected bargaining only.
Today it also revealed that the current arrangements for obtaining orders to stop or prevent unprotected industrial action will continue to apply, including the current arrangements for obtaining interim orders. Access to the courts for breaches of common law torts will continue to be available.

Significantly, Labor is keeping the current Work Choices provisions that allow those affected by unprotected industrial action to go straight to court to seek orders. Previously under the ALP, parties had to seek a certificate (known as a s166A certificate) from the AIRC prior to commencing proceedings in the courts over unprotected industrial action.

Right of entry
In another contentious area that will be welcomed by employers but not by unions, the ALP is retaining the Work Choices' right of entry rules.

In addition to the existing 24-hour notice rule, Work Choices introduced the ‘fit and proper person" test for granting permits and expanded the grounds on which permits could be revoked. The Coalition's legislation also made it clear there was no right of entry for discussion purposes where all employees were on AWAs; only allowed entry to investigate a breach of an AWA if the employee party provide consented; required a union official to provide particulars of a breach he or she was proposing to enter to investigate; made clear that a union official could only access the records of union members when investigating a breach, unless an order was made by the AIRC that non-member records could be inspected; and required a union official to comply with a reasonable request by an employer that the meeting or interview be conducted in a particular room with a specified route to that area.

Unions have strongly criticised the Work Choices rules, saying that in addition to restricting their ability to check compliance with industrial instruments has, they have, as intended, substantially diminished their ability to recruit and to bargain collectively.

Rudd today told journalists that he believed the ALP had got right the balance between fairness and flexibility.

Asked whether she expected the Coalition to block the ALP's IR plan in the Senate if Labor won office, Gillard said: "I would be saying to senators who are contesting on election day and those who are continuing to hold office that if a Rudd Labor Government is elected, it will be elected on this policy and platform. You couldn't have a clearer example of mandate and we would not expect Senators from other political parties to stand in the way of Labor delivering on its commitment and most particularly stand in the way of a transition bell being deal with to enable employers and employees to proceed with certainty."

See the ALP's statements on fairness, flexibility, small business, unlawful industrial action, and transitional arrangements.

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