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The Minister for Employment and Workplace Relations, Kevin Andrews, who introduced the Australian industrial relations legislation, speaking at a press conference on 8 November 2005
The Minister for Employment and Workplace Relations, Kevin Andrews, who introduced the Australian industrial relations legislation, speaking at a press conference on 8 November 2005

"WorkChoices" is the collective name of a series of amendments to Australian labour law made by the Howard Government in 2005. The legislation is the most comprehensive change to industrial relations in Australia for almost a century and is a matter of controversy. Although the new laws are supported by employer groups such as the Business Council of Australia and the Australian Chamber of Commerce and Industry, they are bitterly opposed by the Australian labour movement principally through the Australian Labor Party and the Australian Council of Trade Unions as well as various church groups.

The amendments were introduced into the House of Representatives on 2 November 2005 and were accepted by the Senate on 2 December 2005. The changes came into effect on 27th March 2006.

Scope of the changes

The changes include:-

  • the formation of a single national industrial system to replace the separate state and federal systems for constitutional corporations;
  • the establishment of a body to be known as the Australian Fair Pay Commission to replace National Wage Cases at the Australian Industrial Relations Commission (AIRC);
  • the streamlining of Certified Agreement and Australian Workplace Agreement making, including increasing the maximum agreement life from three years to five years;
  • a reduction in allowable award matters;
  • the creation of legislation for five minimum workplace conditions;
  • the exemption of companies with fewer than 101 employees from unfair dismissal laws;
  • the exemption of all companies from unfair dismissal laws where a dismissal is for a bona fide operational reason;
  • increased restrictions on allowable industrial action;
  • mandating secret ballots for industrial action;
  • discouraging pattern bargaining and industry-wide industrial action.

On October 9, 2005 the Howard Government launched its "WorkChoices" guide and announced that some further changes and concessions had been made to the package, the concessions widely credited as being the result of union lobbying. The Opposition Australian Labor Party described it as "sugar-coating a poison pill"; the Australian Council of Trade Unions described it as merely a "re-presentation" of the old package.

Introduction of the Bill into Parliament

Eleven Labor MPs who were ejected from the House of Representatives for protesting disorderly against the Howard Government's industrial relations bill. Left to right: Anthony Albanese, Annette Ellis, Anthony Byrne, Maria Vamvakinou, Catherine King, Michael Danby, Dr Craig Emerson, Gavan O'Connor, Julia Irwin, Kelly Hoare, Bernie Ripoll.
Eleven Labor MPs who were ejected from the House of Representatives for protesting disorderly against the Howard Government's industrial relations bill. Left to right: Anthony Albanese, Annette Ellis, Anthony Byrne, Maria Vamvakinou, Catherine King, Michael Danby, Dr Craig Emerson, Gavan O'Connor, Julia Irwin, Kelly Hoare, Bernie Ripoll.

The Workplace Relations Amendment (Work Choices) Bill 2005 (Cth) was introduced into the Australian House of Representatives on November 2, 2005 by the Minister for Employment and Workplace Relations, Kevin Andrews.

The Labor Party claimed it was not provided with enough copies of the Bill when it entered the Parliament. They mounted a campaign against the Bill in Parliament throughout the day. During Question Time, Opposition members continually interjected while Government members were speaking, leading the Speaker (and later the Deputy Speaker) to remove 11 of them.

The Bill passed through the House of Representatives on 10 November and was introduced into the Senate later that day by Special Minister of State, Senator Eric Abetz. The Bill was passed, with amendments, by the Senate, by a vote of 35-33 on 2 December 2005.

The Bill received the Royal Assent on 14 December and the parts concerning the Australian Fair Pay Commission, wages for school based trainees and apprentices, and redundancy pay for small employers became enacted immediately from that date.

The Minister for Employment and Workplace Relations released the first set of regulations for the bill on 17 March 2006 and following that the complete act - titled in full as the Workplace Relations Act 1996, Act No. 86 of 1988 as amended - was proclaimed by Australia's Governor-General Michael Jeffery. The act commenced on 27 March 2006.

Opposition to the changes

Greg Combet, Secretary of the Australian Council of Trade Unions, tells a media conference that "the Australian labour movement will overturn this legislation, no matter how long it takes." He was speaking on November 2, 2005, shortly after the government introduced its legislation into the Australian Parliament.
Greg Combet, Secretary of the Australian Council of Trade Unions, tells a media conference that "the Australian labour movement will overturn this legislation, no matter how long it takes." He was speaking on November 2, 2005, shortly after the government introduced its legislation into the Australian Parliament.

In response to the Howard Government's WorkChoices package, the Australian Council of Trade Unions, the peak association for Australian trade unions, launched its "Your Rights at Work" campaign opposing the changes. The campaign involves mass rallies and marches, television and radio advertisements, judicial action, e-activism, and, potentially, industrial action.

The week of action culminated on Friday 1 July 2005 with a "SkyChannel" meeting of union delegates and members organised by Unions NSW. The main part of the meeting was broadcast from Sydney with links to more than 200 locations around New South Wales. According to official figures from Unions NSW, over 103,500 attended the meetings, with the largest attendances being at being Sydney Town Hall (20,000), the Wollongong Entertainment Centre (6,500), the Rooty Hill RSL (5,000), Newcastle Panthers Club (4,000). The meeting was followed by a large rally in Sydney and events in regional areas. One public opinion poll found 60 per cent of respondents were opposed to the industrial relations changes.

Individual State Governments have also opposed the changes. For example, The Victorian Government has introduced the Victorian Workplace Rights Advocate as a form of political resistance to the changes.

In December 2005, the federal caucus of the Australian Labor Party initiated an Industrial Relations Taskforce in order to investigate the adverse effects of the legislation, chaired by Brendan O'Connor, with special emphasis on the impact on regional and rural communities, women and young people. During 2006, the Taskforce travelled to every state and territory in Australia, convening meetings with individuals, employers, church and community groups and trade unions, collecting testimony in order to inform federal Labor's policy response and to publicise instances of actual exploitation. An interim report, 'WorkChoices: A Race to the Bottom' was launched by Opposition Leader Kim Beazley at Parliament House, Canberra on 20 June 2006, and widely distributed.


The ACTU's campaign (with an allocated $8 million) triggered a Government counter-campaign promoting the reforms. Stage one of the campaign preceded the release of the legislation and cost approximately $45.7 million, including advertisements, information booklets and a call centre. A subsequent stage of the campaign has been announced.

The Government argues that such expenditure is normal procedure when introducing radical change, citing the example of the GST advertising.

The ALP, minor parties and the ACTU have attacked the advertising campaign, describing it as party advertising funded from general revenue. ACTU President Sharan Burrow has called the government advertisements deceitful.

The expenditure was challenged in the High Court of Australia by the Australian Labor Party and the Australian Council of Trade Unions, on the grounds that the expenditure was not approved by Parliament. On September 29, the High Court rejected this argument in a majority decision.

The Business Council of Australia is to spend approximately $6,000,000 supporting the laws and the NSW government is spending approximately $300,000 opposing them.

National Day of Protest

On 15 November 2005, the ACTU organised a national day of protest, during which the ACTU estimated 546,000 people took part in marches and protests in Australia's state capitals and other cities. The rallies were addressed by State premiers and religious leaders. Other notable Australians, including former Prime Minister Bob Hawke, also spoke in opposition to the industrial relations changes. John Howard said that the protests will not change his policy and employer groups estimated that 95% of the workforce did not attend.

A second national day of protest is planned on November 30, 2006. There are plans to fill the MCG, and Jimmy Barnes is said to be attending on the day, along with the leader of the opposition Kim Beazley.

Significant changes

Changing dismissal protection laws for some employees

Employees of businesses employing up to 100 staff no longer come under the protection of unfair dismissal laws, introduced by the Labor Government of Paul Keating in 1993. Unfair dismissal protection had existed before this either in Awards themselves or through state industrial relation commissions. Employees of larger businesses are not protected if they are dismissed for 'bona fide operational' reasons.

The Howard Government argues these laws have stifled business growth and meant less jobs. It argues up to 70,000 extra jobs will be created. This figure is much disputed. The Government also argues that unfair dismissal laws are open to abuse. In the alternative it has offered a payment of $4,000 to people who have been unlawfully dismissed to help with legal costs. The grounds upon which an employee can claim for unlawful dismissal are more narrowly restricted than the grounds for unfair dismissal; these include grounds such as racial discrimination, family commitments and where the dismissal arose as retaliation against a complaint from an employee. Further, unlawful dismissal can only be remedied through a hearing in the courts, with corresponding delays and costs to the employee and employer. Unfair dismissal claims were able to be adjudicated by the Australian Industrial Relations Commission, without trained lawyers and more expeditiously than a legal process.

Forcing all constitutional corporations into the Federal system

All constitutional corporations (ie. trading, financial, and foreign corporations) are forced into the new WorkChoices system, which the Howard Government argued was valid under the Constitution of Australia. The Howard Government relied on the corporations power of Section 51(xx) as the entire basis of its new laws. This has replaced the previous system which used this power and the labour power of Section 51(xxxv) which provides that Commonwealth may make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State"

At the commencement of the WorkChoices reforms every state and territory of Australia had a Labor leader in government. Each state lodged a challenge to the Constitutional validity of the WorkChoices laws before the High Court of Australia. Various union groups also lodged their own challenge in the High Court. The High Court heard arguments between 4 May 2006 and 11 May 2006. On 14 November 2006 the High Court, by a 5 to 2 majority, rejected the challenge, upholding the Government's use of the corporations power as a constitutionally valid basis for the WorkChoices reforms.

While one of the purposes of these changes is to provide a single national industrial relations system, in practice, each of the States' systems remains in force and continues to apply to employers that are not incorporated and trading, financial or foreign organisations. Such employers may include sole traders, partnerships, charities and state and local government bodies although recent decisions by the New South Wales Industrial Relations Commission have included incorporated charities within the Federal arena by virtue of their trading activities.

Scrapping the "No Disadvantage Test" for agreements

Prior to the WorkChoices amendments coming into force, Certified Agreements; which are referred to as Collective Agreements in the amended Workplace Relations Act (CAs) and Individual Australian Workplace Agreements (AWAs) had to pass a No Disadvantage Test. This test compared a proposed agreement to an underpinning and relevant award that had or should have covered employees up until the proposal for an agreement. The No Disadvantage Test weighed the benefits of the award against the proposed agreement to ensure that, overall, employees were no worse off.

The amended Workplace Relations Act 1996 requires that employers provide employees with five minimum entitlements, which cover maximum ordinary working hours, annual leave, parental leave, personal/carer's leave and minimum pay scales. These five minimum entitlements are referred to as the Australian Fair Pay and Conditions Standard. However, the Standard will not have any bearing on agreements that were certified prior to the commencement of WorkChoices. Notional Agreements Preserving State Awards (NAPSAs) will be subject to a 'more generous test'. If their conditions are more generous than what is provided for under the Standard, those conditions will continue to apply.

Those who supported the scrapping of the no disadvantage test say that it was too complex and argue its removal will create more opportunities for unemployed people to be offered a job. The example of "Billy" was used in material supporting the Government's position.

Unions and other groups that remain opposed to WorkChoices say that Billy is a perfect example of why the new laws are unfair and will lead to bosses exploiting their workers.

Streamlined process for agreement certification

Previously, certified agreements, which are collective agreements about employment entitlements and obligations, made by an employer directly with employees or with unions, had to be lodged and certified in the Australian Industrial Relations Commission (AIRC).

The new legislated changes have transferred responsibility for overseeing the agreement certification process to the Office of the Employment Advocate, which has had some of its other powers of investigation transferred to the Office of Workplace Services. Now instead of appearing before a Commissioner at the AIRC, parties to a collective agreement are only required to make written submissions via a simplified lodgment process.

This new process has been criticised by those opposed to WorkChoices as they believe that it will give unions less opportunity to scrutinise and intervene where they believe an agreement has been unfairly drafted. However the government has stated in response that the intention of this part of the Act was to improve the turn-around time for agreement certification. In addition the newly amended Act does provide for substantial penalties upon employers, employees and unions where a collective agreement does not comply with the new regulations or includes prohibited content.

Senate Inquiry

An inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005 was held by the Senate Employment, Workplace Relations and Education Committee, to which the Bill was referred once it was introduced into the House of Representatives.

Five days were allowed for submissions to be made to the committee, with the closing date being 9 November. Five days of hearings are scheduled to be held at Parliament House in Canberra commencing 14 November, with the committee reporting to the Senate on 22 November.

This decision to have a rather short inquiry has been criticised by some people who claim that this is an attempt by the Government to avoid proper scrutiny of the Bill.

As at November, the Senate has received more than 4,500 submissions, of which only 173 have been published on the website. The committee has not individually acknowledged and published all submissions, due to the large number of submissions, at least partially caused by ACTU's campaign against WorkChoices, which included setting up a form on its website by which people could make a submission .

On November 14, the Senate Inquiry began its five-day hearing -- in which only a fraction of the submissions will be heard -- with the submissions of State and Territory Industrial Relations Ministers and representatives. The representatives were each allowed only seven minutes to address the Inquiry, during which they criticised the package as being unconstitutional and undermining the rights and conditions of workers.

Debate and reaction

The Howard Government argues that the reforms are the next necessary step in the deregulation of the Australian economy. Workplace Relations Minister Kevin Andrews stated that "We have seen 1.7 million extra jobs created in Australia, more than a 14% increase in real wages. Part of the reason for that is because of the reforms that we made in 1996." The Government argues that employees will have more choice and flexibility and this in turn will lead to higher productivity.

Unions, opposition parties and academics argue that there is no economic evidence to support the Government's claims that the changes will stimulate productivity and raise wages. They argue that WorkChoices offers a one-sided choice and flexibility firmly in favour of employers and that the régime will leave unskilled and marginalised workers worse off. Comparisons have been made between this legislation and the Master and Servant Act of the nineteenth century. The ACTU claims credit for real wage rises over the past decade and point out that the Government has opposed every increase to the minimum wage since its election; had the AIRC accepted the Government's Living Wage submissions, the minimum wage would be lower by more than $50 per week. They point to the fact that job applicants can be made to sign an AWA as a condition of employment, and that existing employees can be unreasonably pressured into signing the contracts through unrestricted employer lockouts. Some have argued that the laws may be in contravention of ILO Convention No. 98 in that they place restrictions on collective bargaining and organisation: Australia is the only country in the OECD in which there is no protected right to collective bargaining.

On November 16, 2005, a statement criticising the changes was issued by a group of 151 academics, drawn from the fields of economics, law, business and industrial relations studies. In the statement, the group indicated that they "...share grave concerns about the historic and far-reaching changes now proposed for Australia's workplace relations and their potential effects upon Australian workplaces, workers, and our larger society and economy." With regards to the Government's claims that the changes would serve to promote and improve productivity, employment and the general economy, the group noted: "These assumptions, while repeatedly asserted, are not supported by evidence, and are contradicted by much of the empirical evidence that is available." In a separate address made the same day to the National Press Club, Sydney University professor of industrial law Ron McCallum also heavily criticised the Bill, describing some of its clauses as "absurd", and maintaining that the "extraordinary re-regulation" went much further than regulations in all comparable countries towards restricting union negotiation rights and controlling collective bargaining processes.

Both sides of the debate on WorkChoices agree that industrial relations will be a major issue at the next Federal election. The legislation was approved, following the allowance of several amendments on November 30 to gain the support of Senator Barnaby Joyce.

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