Work Choices how does it affect you? - NORTHERN TERRITORY WORKPLACE ADVOCATE
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NORTHERN TERRITORY WORKPLACE ADVOCATE
Work Choices
how does it affect you?
1© Northern Territory Government, 2 June 2006
Apart from any use permitted under the Copyright Act, no part of this
document may be reproduced without prior written permission from
the Northern Territory Government through the Northern Territory
Workplace Advocate.
Enquiries should be made to:
Northern Territory Workplace Advocate
GPO Box 4371
Darwin NT 0801
Telephone: 1300 852 899
Facsimile: 8999 4148
Email: workplace.advocate@nt.gov.au
Web: www.nt.gov.au/ntworkplaceadvocate
Disclaimer
This publication is intended to inform generally. It does not constitute
legal advice to readers, nor is it intended to be a complete or definitive
statement of the law. Professional advice should be sought before any
action is taken in relation to the matters discussed.
2Work Choices
how does it affect you?
1. Introduction ............................................................................ 4
2. Northern Territory Workplace Advocate .............................. 5
3. Overview and impact of Work Choices ................................ 7
3.1 Minimum conditions – the Australian Fair Pay and
Conditions Standard .............................................................................. 7
3.2 Minimum wages set by the Australian Fair
Pay Commission ..................................................................................... 9
3.3 Agreement making ................................................................................. 10
3.4 Awards .................................................................................................... 15
3.5 Termination – unfair and unlawful dismissal....................................... 18
3.6 Dispute resolution .................................................................................. 20
4. What does it mean for employees? ...................................... 22
5. What does it mean for employers? ...................................... 29
6. Further information ................................................................ 35
Attachment – Workplace Agreement Checklist ................................ 37
31. Introduction
Last year the Australian Government announced its plans to
significantly reform the Federal industrial relations system. Those
reforms have become widely known as “Work Choices” and
commenced on 27 March 2006 under the Workplace Relations
Amendment (Work Choices) Act 2005.
The Northern Territory Government is opposed to Work Choices and
has intervened in High Court proceedings initiated by the states, which
challenge Work Choices on constitutional grounds. The Northern
Territory Government’s intervention is based on an issue specifically
relating to the “Territories power” under the Constitution and the validity
of the Australian Government’s reliance on this power under Work
Choices. The case is to be heard by the High Court in early May 2006,
but the decision is not expected until later in the year. In the meantime,
Work Choices continues to operate and introduces significant changes
affecting all Territory employers and employees.
4The Northern Territory Government is committed to harmonious and
productive workplace practices in the Territory. To help ensure this,
employers and employees need to understand Work Choices and
its impact. This booklet forms part of a package of initiatives by the
Northern Territory Government designed to inform employers and
employees on the key elements of Work Choices and what the reforms
mean for Territorians.
2. Northern Territory Workplace
Advocate
Under Work Choices, employees may experience reduced pay,
conditions and protections, and employers may experience productivity
losses, increased costs and complexities in administering work related
matters. To ameliorate the potential effects of Work Choices and to
assist Territory employers and employees in understanding and using
the new regime, the Northern Territory Government has established the
Northern Territory Workplace Advocate, which commenced operating on
2 May 2006.
The role of the Advocate is to:
• inform, educate and consult with Territory workers, employers
and their representatives about rights and responsibilities in
relation to work-related matters;
• facilitate and encourage the fair industrial treatment of workers;
• promote informed decision-making by Territory workers and
employers;
5• act as an advisory service for workers, ensuring they are
fully informed of the implications of their agreements and
how these may affect their terms and conditions of
employment;
• monitor and report to the Minister on industrial relations
practices in the Territory; and
• advise the Minister generally about work-related matters.
Examples of the types of services that the Advocate will perform in
carrying out this role are:
• providing free, independent information and advice to
employees and employers on the content and effect of the
Australian Government’s Work Choices reforms;
• assisting employees in checking proposed workplace
agreements against existing award conditions to make sure that
they are fair;
• assisting employers in ensuring that they comply with
agreement making and record keeping requirements under
Work Choices; and
• educating employers on the benefits of offering fair employment
conditions and adopting fair workplace practices.
While the Advocate will be able to provide information and general
advice in relation to certain work-related matters, it is unable to:
• resolve disputes or disagreements between parties;
• initiate court or tribunal proceedings; or
• directly represent parties in court or tribunal proceedings.
6In addition, the Advocate will not provide specific advice in relation
to work-related matters where responsibility already lies with another
specialist public sector body.
These include matters involving:
• discrimination (see the Northern Territory Anti-Discrimination
Commission);
• occupational health and safety (see NT WorkSafe); and
• trainees and apprenticeships (see the Department of
Employment, Education and Training).
For more information about the Northern Territory Workplace Advocate
visit www.nt.gov.au/ntworkplaceadvocate or call 1300 852 899.
3. Overview and Impact of Work
Choices
3.1 Minimum conditions – the Australian Fair
Pay and Conditions Standard
Work Choices creates the following set of statutory minimum
employment conditions for employees, with which all Northern Territory
employers must comply:
• a maximum of 38 ordinary hours of work per week, which
can be averaged over a period of up to 12 months by written
agreement between the employer and employee (employees
can be required to work reasonable additional hours);
7• four weeks of paid annual leave (with an additional week
for continuous shift workers), two weeks of which may be
“cashed out” at the written request of the employee, provided
there is a workplace agreement in place which expressly
permits this;
• ten days of paid personal/carer’s leave (including sick leave)
and:
o an additional two days of unpaid carer’s leave per
occasion where the paid leave entitlement has
been exhausted; and
o an additional two days of paid compassionate leave per
occasion; and
• 52 weeks of unpaid parental leave (including maternity, paternity
and adoption leave) for employees with at least 12 months
continuous service.
These conditions, together with Federal minimum wages set by a
new body called the Australian Fair Pay Commission, make up the
Australian Fair Pay and Commission Standard (“the Standard”).
The Standard automatically applied to all Northern Territory employees
as of 27 March 2006, except for those covered by a current certified
agreement or an Australian Workplace Agreement (“AWA”) entered into
under the previous system. For those employees, the Standard will only
apply once the existing agreement expires or is otherwise terminated.
83.2 Minimum wages set by the Australian Fair
Pay Commission
Under the previous system, the Australian Industrial Relations
Commission was responsible for setting and adjusting minimum wages
in Federal awards. The Australian Industrial Relations Commission
played the role of the independent umpire, adjusting minimum wages
every year through its annual Safety Net Review wage case. These
powers of the Australian Industrial Relations Commission have been
removed and it will no longer perform this role.
Under Work Choices, the statutory Federal minimum wage will apply to
all employees, not just employees covered by awards as was previously
the case. The minimum wage will be set and adjusted by the Australian
Fair Pay Commission. The Federal adult minimum wage under Work
Choices has initially been set at an hourly rate of $12.75.
In setting and adjusting minimum wages, the Australian Fair Pay
Commission is required to promote the economic prosperity of
Australians, while taking into account a number of factors including the
needs of the low paid and unemployed. Unlike the position under the
previous system:
• the Australian Fair Pay Commission does not have to consider
the need to provide fair minimum wages in the context of
general living standards in Australia; and
• under Work Choices minimum wage reviews do not have to be
conducted annually.
These changes have led to concerns that the Federal minimum wage
will decrease in real terms over time.
9The Australian Fair Pay Commission is also responsible for setting the
loading rate to apply to casual employees, to compensate them for the
fact that they are not entitled to paid annual leave or personal leave
under the Standard. That rate is currently set at 20% on top of the
ordinary hourly rate.
3.3 Agreement making
3.3.1 Types of workplace agreements
Six types of “workplace agreement” can be made under Work Choices.
These are:
• union collective agreements, which are negotiated between
employers and unions;
• employee collective agreements, which are negotiated directly
between a group of employees and their employer;
• AWAs, which are negotiated directly between an individual
employee and his or her employer;
• union greenfields agreements, which are negotiated between
employers and unions in relation to new businesses which do
not yet have employees;
• employer greenfields agreements, which can be made by the
employer in relation to new businesses which do not
yet have employees; and
• multiple business agreements, which can be negotiated
between employers and employees or unions, and are used
where there are a number of businesses carrying on the same
type of business and want to offer their employees the same
working conditions (eg: franchise operations).
103.3.2 Agreement making process
Under the previous system, certified agreements were approved by the
Australian Industrial Relations Commission if they passed a
“no disadvantage test”, which required them to be as favourable overall
as the relevant award. Similarly, AWAs were approved by the Office of
the Employment Advocate if they passed a no-disadvantage test. Under
Work Choices, this test has been abolished and workplace agreements
will just need to comply with the Standard, which in most cases will be
inferior to current award conditions.
That said, some award terms known as “protected award conditions”,
will be deemed to be included in workplace agreements. Protected
award conditions will only apply to employees who would otherwise
have been covered by an award providing for them, unless a workplace
agreement contains a clause stating that they do not apply. This means
that, strictly speaking, the conditions are not protected, as they can
be removed by the terms of a workplace agreement and there is no
requirement that employees be compensated in any way to make up for
the loss.
The protected award conditions are:
• rest breaks;
• incentive-based payments and bonuses;
• annual leave loadings;
• public holidays;
• certain monetary allowances;
• overtime or shift work loadings;
• penalty rates; and
• outworker conditions.
11Finally, workplace agreements made under Work Choices will no
longer be approved by the Australian Industrial Relations Commission.
Instead, once employees have been:
• provided with the proposed agreement and requisite
Information Statement (obtained from the Australian
Government Office of the Employment Advocate); and
• given 7 days to consider them (unless waived by the employee),
the workplace agreement simply needs to be lodged with the
Employment Advocate, along with a statutory declaration attesting to
compliance with the requirements under Work Choices in relation to
agreement making and content.
3.3.3 Workplace agreements and “prohibited content”
In a move to further reduce protections for employees, workplace
agreements must not be lodged with the Office of the Employment
Advocate if they contain “prohibited content”. Prohibited content is set
out in the regulations and includes terms dealing with:
• deductions from wages for union dues;
• trade union training leave;
• paid leave to attend union meetings;
• renegotiation of a workplace agreement;
• union rights to represent employees in dispute settling
procedures, unless requested by an employee to do so;
• union rights to enter employer premises;
• restrictions on the engagement of independent contractors and
labour hire workers;
12• forgoing annual leave except in accordance with Work Choices,
which allows 2 weeks annual leave to be cashed out;
• provision of information about employees bound by a workplace
agreement to a union, unless required or authorised by law;
• encouragement or discouragement of union membership;
• industrial action during the term of the agreement;
• remedies for unfair dismissal;
• prohibitions on AWAs; and
• matters that do not pertain to the employment relationship.
As a result of these and other requirements under Work Choices, the
drafting of workplace agreements will be more complex and difficult.
Employers who lodge workplace agreements containing prohibited
content face significant penalties of up to $33,000.
3.3.4 Workplace agreements and “prohibited conduct”
Under Work Choices, an employer, employee, or union representative
cannot:
• take or threaten any action to try and coerce another person to
agree, or not agree, to a collective agreement;
• coerce another person to appoint, or not to appoint, a particular
bargaining agent in relation to an AWA;
• coerce another person not to request the assistance of
a bargaining agent to represent them when meeting and
conferring about the making of a collective agreement; or
• apply duress in connection with an AWA.
13Behaviour of this type is known as “prohibited conduct”. The prohibited
conduct sections of Work Choices aim to prevent underhanded tactics
being used by (for example):
• employers, in an attempt to:
o force employees to enter into AWAs;
o prevent employees from seeking assistance from a
union representative; and
• unions or employees, in an attempt to force employers to agree
to collective agreements.
Importantly, Work Choices makes it clear that it is not duress for
an employer to insist that a new employee enter into an AWA as a
condition of employment.
Incorporated employers and unions can be fined up to $33,000 for
breaching the prohibited conduct provisions. Individuals can be fined up
to $6,600.
3.3.5 Protected industrial action during bargaining period
Under the previous system, parties to an industrial dispute had the
right to take lawful or “protected” industrial action (eg: strikes, go slows)
during a bargaining period, for the purpose of supporting or advancing
claims made in relation to a proposed certified agreement.
A number of changes have been made under Work Choices which
limit the ability of parties to take such action. Most importantly, before
taking protected industrial action unions or employees must apply to the
Australian Industrial Relations Commission to conduct a secret ballot.
14If the application is granted, at least 50 per cent of eligible employees
need to vote in the ballot and the majority of them need to vote in favour
of the proposed industrial action. This process makes it more difficult for
unions and employees to take industrial action, involving significant time
and costs.
3.3.6 Termination of workplace agreements
Workplace agreements made under Work Choices can be terminated:
• at any time with the approval of all parties bound; or
• by any one party to the agreement, on the giving of 90 days
notice, after the workplace agreement has reached its nominal
expiry date.
Under the previous system, when a workplace agreement was
terminated and no new agreement was entered into, employees fell
back onto the relevant award. Under Work Choices, employees only fall
back onto the Standard and any applicable protected award conditions
(see section 3.3.2).
3.4 Awards
3.4.1 Award rationalisation
Under Work Choices the number of existing Federal awards will be
drastically reduced, by rationalising awards on an industry sector basis.
This means that over time, awards applying to particular employers and
employees will be revoked and will be replaced by one award applying
to all employers and employees in the particular industry.
153.4.2 Award variation
Existing awards will not be allowed to be varied under Work Choices,
except to remove any ambiguity or uncertainty.
This means that they are effectively frozen in time and cannot
be amended to reflect developments relating to the employment
relationship.
Given this, there are widespread concerns that over time awards will
become outdated and employees and employers will be forced to enter
workplace agreements.
3.4.3 Reduction in allowable award matters
The number of allowable award matters has been reduced, with the
following matters no longer able to be included in awards:
• annual leave;
• personal/carer’s leave;
• parental leave;
• rates of pay and classifications of employees;
• long service leave;
• superannuation;
• jury service; and
• notice of termination.
The Australian Government’s rationale for excluding these matters from
the list of allowable award matters is that they are provided for under
the Standard or other existing legislation. However, clauses dealing with
these matters in existing awards will continue to operate.
163.4.4 Non-allowable matters
Work Choices further restricts the scope of allowable award matters by
specifying certain subject matter as “non-allowable”, including:
• rights of unions to represent employees in dispute settling
procedures, unless requested by an employee to do so;
• conversion from casual to other types of employment;
• the maximum or minimum number of part-time employees;
• restrictions on the range or duration of training arrangements;
• restrictions on the engagement of independent contractors or
labour hire workers;
• union picnic days; and
• trade union training leave.
Clauses dealing with these matters in existing awards will no longer be
allowed to operate.
3.4.5 Interaction between awards and workplace agreements
Under the previous system, an award and a certified agreement were
both able to apply to an employee at the same time. Under the new
system, only one instrument can operate at any one time and where
a workplace agreement is entered into the relevant award cannot
continue to apply. This means that if a workplace agreement is entered
into, employees will automatically lose any entitlements under a
relevant award (except for any protected award conditions), unless the
workplace agreement incorporates the terms of the award.
17In addition, once the workplace agreement expires employees cannot
fall back onto the award. Instead, if no new agreement is entered into
they will fall back onto the Standard, along with a limited number of
protected award conditions if they apply (see section 3.3.2).
3.4.6 What does this mean for awards?
The role of awards has been gradually eroding over the last decade,
with increasing emphasis on enterprise bargaining.
However, until now awards still played an important role in providing a
minimum safety net against which all certified agreements and AWAs
had to be compared to ensure that employees were not worse off,
overall, by entering into a certified agreement or AWA. In addition,
award conditions could continue to operate alongside a certified
agreement or AWA, provided they were not inconsistent.
Under Work Choices, the number of awards will be slashed, the matters
that they can deal with reduced and their role in providing a safety net
largely abolished.
3.5 Termination – unfair and unlawful dismissal
The Federal industrial relations regime has always contained provisions
dealing with unfair and unlawful dismissals.
Unfair dismissals are those which are “harsh, unjust, or unreasonable”
and include terminations by an employer where there is no:
• valid reason (eg: an employee is performing well in the job but
the employer just doesn’t like him and dismisses
him for this reason); or
18• procedural fairness (eg: where an employee is terminated
for poor performance, without being given an opportunity to
explain the reasons for the poor performance, or to
improve her performance).
Because of Work Choices, the vast majority of Northern Territory private
sector employees can no longer bring “unfair dismissal” claims.
All employees of businesses employing less than 100 staff, and the
following employees of businesses employing more than 100 staff, are
unable to access the unfair dismissal laws:
• employees who have not served a six month qualifying period;
• seasonal workers;
• employees engaged for a fixed period or a specified task;
• probationary employees;
• casual employees engaged for a short period;
• trainees;
• employees earning over $94,900 who are not covered by an
award or workplace agreement; and
• employees dismissed for genuine operational reasons
(eg: redundancy).
All Northern Territory employees may still bring “unlawful dismissal”
claims under Work Choices, if dismissed for certain reasons, including:
• temporary absence from work because of illness or injury;
• trade union membership or non-membership;
• filing a complaint, or participating in proceedings against an
employer;
19• race, sex, sexual preference, age, disability, marital status,
family responsibilities, pregnancy, religion or political opinion;
• refusing to negotiate or sign an AWA;
• absence from work because of maternity leave or other parental
leave; or
• temporary absence from work because of a voluntary
emergency management activity.
Unlawful dismissal claims under Work Choices must be heard before
a Court, so can be lengthy and expensive. Some employees bringing
unlawful dismissal claims may be eligible to receive up to $4,000
of independent legal advice, funded by the Australian Government.
However, the cost of most claims will be far more than this amount.
For this reason, employees dismissed for discriminatory reasons
(eg: race, sex and age) may prefer to bring a discrimination action
before the Northern Territory Anti-Discrimination Commission or the
Federal Human Rights and Equal Opportunity Commission. These
forums are less formal and will generally be a quicker and cheaper way
of seeking redress for discriminatory conduct, than bringing an unlawful
dismissal claim under Work Choices.
3.6 Dispute resolution
Work Choices contains a model dispute resolution process that will
apply to disputes relating to the Standard, awards and workplace
agreements (where the workplace agreement does not contain its own
dispute resolution clause).
20Under the model dispute resolution process, the Australian Industrial
Relations Commission’s powers are limited to a conciliatory role unless
all of the parties to the dispute agree to it arbitrating the matter. Where
a workplace agreement contains its own dispute resolution clause, the
Australian Industrial Relations Commission’s powers are confined to
those given under the clause, or otherwise agreed between the parties
to the dispute.
Under Work Choices the Australian Industrial Relations Commission
is not the only place that parties to a dispute can seek assistance and
private alternative dispute resolution providers can be agreed upon by
the parties, though this will considerably increase the costs associated
with dispute resolution.
It has been argued by some commentators that the dispute resolution
process under Work Choices effectively transforms the Australian
Industrial Relations Commission into a voluntary dispute resolution
body with minimal powers. With the removal of its traditional powers
of compulsory conciliation and arbitration, the effectiveness of the
Australian Industrial Relations Commission in resolving disputes will
be reduced and disputes may continue unresolved. Therefore, it is
possible that the changes to dispute resolution under Work Choices will
result in greater disruption in the workplace, with consequent declining
employee morale and workplace productivity.
214. What does it mean for
employees?
4.1 I was covered by an award under the
previous system, what terms and conditions
will apply now?
Existing Federal awards will continue to apply under Work Choices in
the immediate future. Where award conditions are less generous than
the Standard, the conditions under the Standard will override them.
Where award conditions are more generous than the Standard, they
will continue to apply. Because Work Choices does not allow awards
to contain certain matters (see sections 3.4.3 and 3.4.4), some clauses
in your award may no longer operate. In addition, over the longer
term, conditions under existing awards may be lost due to the award
rationalisation process (see section 3.4.1).
4.2 Can the current wage under my award be
reduced?
No. Your award wage cannot be reduced below the current rate.
However, unlike the situation under the previous system, Work Choices
does not require that the Federal minimum wage be reviewed and
adjusted annually. So your wage under the award may not be increased
as regularly as it has been in the past, with the result that it may
decrease in real terms over time.
224.3 I was covered by an agreement under the
previous system, what terms and
conditions will apply now?
Existing certified agreements and AWAs will continue to operate
under Work Choices and the Standard will not apply until they expire
or are otherwise terminated. Because Work Choices does not allow
agreements to contain certain matters (see section 3.3.3), some
clauses in existing agreements may no longer operate.
4.4 What terms and conditions will apply when
my existing agreement ends?
Under the previous system, where an agreement was terminated and
no new agreement entered into, employees fell back onto the relevant
award. Under Work Choices, if your existing certified agreement or
AWA ends and no workplace agreement is negotiated in its place, you
will only be covered by the Standard, along with a limited number of
protected award conditions if they apply (see section 3.3.2). This means
that unless a new workplace agreement with comparable terms is
agreed upon, your terms and conditions will most likely be reduced.
4.5 I am a casual employee, does the standard
apply to me?
As a casual, you are entitled to all elements of the Standard except
for paid annual leave and paid personal leave. To compensate for this,
under the Standard you are entitled to a casual loading of 20%. If you
are covered by an existing award, certified agreement or AWA with a
higher loading, the higher rate will continue to apply while the award or
agreement continues to operate.
234.6 Do I have to cash out my annual leave?
No. You cannot be forced to cash out your annual leave. Under Work
Choices you can choose to cash out up to 2 weeks’ annual leave if you
want to, but only if a workplace agreement expressly allows for this and
you request the cash out in writing.
4.7 Will I still receive annual leave loading?
If you are covered by an existing award, certified agreement or AWA
that provides for annual leave loading, that entitlement will continue
under Work Choices while the award or agreement continues to
operate. Because annual leave loading is a protected award condition
(see section 3.3.2), it will be deemed to be a condition of a new
workplace agreement entered into after your current agreement expires,
unless the agreement expressly excludes it.
If you are an award-free employee, or your certified agreement or AWA
does not deal with annual leave, you were previously entitled to annual
leave loading under the Northern Territory Annual Leave Act. However,
Work Choices annual leave provisions will now apply instead and they
do not provide for annual leave loading. Therefore, you will now only be
entitled to annual leave loading if this is negotiated as a term of a new
workplace agreement.
4.8 Will I lose my overtime or shift penalties?
If you are covered by an existing award, certified agreement or AWA
that provides for overtime or shift penalties, these entitlements will
continue to apply under Work Choices while the award or agreement
continues to operate.
24Because these entitlements are protected award conditions
(see section 3.3.2), they will be deemed to be a condition of a new
workplace agreement entered into after your current agreement expires,
unless the agreement expressly excludes them.
4.9 Do I only have to work 38 hours a week from
now on?
No. Despite the fact that the Standard states that the maximum ordinary
working hours are 38 per week, your employer can require you to work
reasonable additional hours. Work Choices sets out a list of factors that
must be considered when determining whether the requested additional
hours are reasonable, including:
• risks to your health and safety;
• your personal circumstances, including family responsibilities;
• the operational requirements of the workplace;
• any notice given by your employer of the need for you to work;
and
• the hours you have already worked over the previous month.
In addition, your employer can request that your hours be averaged
over a certain period. For example, in response to changing demands
in workload, your employer could ask you to work 50 hours per week in
the month leading up to Christmas and drop back to 26 hours per week
for a month in the new year when things slow down. Arrangements of
this type can only occur if you agree to them in writing.
Under Work Choices, there is no requirement for your employer to pay
you overtime for hours worked in excess of 38 per week.
25However, if you are covered by an existing award, certified agreement
or AWA that provides for overtime, this condition will continue to apply
while the award or agreement continues to operate. Because overtime
is a protected award condition (see section 3.3.2), it will be deemed to
be a condition of a new workplace agreement entered into after your
current agreement expires, unless the agreement expressly excludes it.
4.10 Am I still entitled to long service leave?
Yes. If your existing award, certified agreement or AWA contains a
clause dealing with long service leave, it will continue to apply. If you
are an award-free employee, or your certified agreement or AWA
does not deal with the issue, your entitlement to long service leave
arises under the Northern Territory Long Service Leave Act. This act is
unaffected by Work Choices and continues to operate as it always has.
4.11 Do I have to get a medical certificate every
time I am off work sick?
There is no automatic need for you to get a medical certificate every
time you are sick. However, under Work Choices your employer can
require you to get a medical certificate, even if you have only taken one
day of sick leave. If it is not reasonably practical for you to get a medical
certificate, Work Choices allows you to provide your employer with a
statutory declaration stating that you were unfit for work because of
illness or injury.
264.12 What will I be entitled to if I am made
redundant?
If your existing award, certified agreement or AWA contains a clause
dealing with entitlements on redundancy, it will continue to apply while
the award or agreement continues to operate, with one exception. In
the case of awards, Work Choices only allows redundancy pay where
the employer’s business employs 15 or more employees. Current
award clauses dealing with redundancy entitlements and applying to
businesses with less than 15 employees will no longer have effect.
Under Work Choices there is no automatic entitlement to redundancy
payments. However, entitlements on redundancy can be negotiated in
workplace agreements made under Work Choices.
4.13 What should I do if my employer wants me
to enter a workplace agreement under
Work Choices?
Workplace agreements made under Work Choices only need to
comply with the Standard, which will most likely be less generous than
conditions under existing awards or agreements. This means that
agreeing to a workplace agreement could mean reduced wages and
conditions. Before entering into a workplace agreement under Work
Choices you should:
• obtain further information to make sure that you are fully
aware of the effect of entering the workplace agreement;
• carefully consider the conditions on offer and compare them
against current conditions to see whether they are fair; and
• seek advice from a union representative, lawyer, the
Northern Territory Workplace Advocate or the Australian
Government’s Office of the Employment Advocate.
27A Workplace Agreement Checklist has been included at the back of this
booklet to assist you with the above process.
4.14 Can my employer force me to enter an AWA?
No. It is unlawful for your current employer to force you to sign an AWA
or else be dismissed or suffer some other disadvantage or detriment. If
you are dismissed for refusing to enter into an AWA, you can bring an
unlawful dismissal claim against your employer.
However, under Work Choices an employer can require a prospective
employee to accept an AWA as a condition of employment.
4.15 Will my union still be able to represent me?
Yes. Certain provisions under Work Choices prohibit mandatory union
involvement in disputes. For example, dispute resolution clauses
granting automatic rights for unions to become involved in disputes
are not allowed in awards or workplace agreements. However, unions
are still able to become involved in disputes and other matters at the
request of an employee.
285. What does it mean for
employers?
5.1 An award covered my employees under the
previous system, what terms and conditions
will apply now?
Existing Federal awards will continue to apply under Work Choices in
the immediate future. Where award conditions are less generous than
the Standard, the conditions under the Standard will override them.
Where award conditions are more generous than the Standard, they
will continue to apply. Because Work Choices does not allow awards
to contain certain matters (see sections 3.4.3 and 3.4.4), some existing
clauses may no longer operate.
5.2 An agreement covered my employees under
the previous system, what terms and
conditions will apply now?
Existing certified agreements and AWAs will continue to apply under
Work Choices and the Standard will not apply until they expire or
are otherwise terminated. Because Work Choices does not allow
agreements to contain certain matters (see section 3.3.3), some
existing clauses may no longer operate.
295.3 What terms and conditions will apply when
the existing agreement ends?
When the existing agreement covering your employees ends, you can
negotiate a new workplace agreement with your employees under
Work Choices. When negotiating workplace agreements, you need
to be aware of what clauses you can and can’t include, as employers
face hefty fines for including prohibited content (see section 3.3.3).
If the existing certified agreement or AWA is terminated and no new
workplace agreement negotiated in its place, your employees will be
covered by the Standard, along with a number of protected award
conditions if they apply (see section 3.3.2).
5. 4 What if my employees are not covered by an
existing award or agreement?
This means that the Standard applies to your employees already.
Under the previous system, there was no minimum wage for award free
employees. Under Work Choices all adult employees must be paid at
least $12.75 per hour. If you currently pay your employees less than this
amount, you are in breach of Work Choices and need to increase their
pay to meet the minimum wage.
5.5 What are the advantages of continuing to
offer fair employment conditions?
For a number of reasons, employers in the Territory face difficulties
in attracting and retaining employees. With labour shortages in many
industries, Territory employers cannot afford to lose employees.
30By offering inferior wages and conditions (eg: the minimum conditions
under the Standard, instead of conditions comparable to those under
existing agreements), you risk doing so. By continuing to offer fair
employment conditions, you will be best placed to attract and retain
high quality and motivated employees, and obtain the obvious flow-on
benefits to business productivity and efficiency.
5.6 What happens if I need my employees to
work more than 38 hours a week?
Even though the Standard states that the maximum ordinary working
hours are 38 per week, in many industries and professions, given the
nature of the particular role being performed, it is usual practice for
employees to work longer hours than this.
Under Work Choices, you can require an employee to work reasonable
additional hours. Work Choices sets out a list of factors that must be
considered when determining whether the requested additional hours
are reasonable, including:
• risks to employee health and safety;
• personal circumstances the employee, including family
responsibilities;
• the operational requirements of the workplace;
• notice given to the employee of the need for them to work; and
• the hours the employee has already worked over the previous
month.
In addition, you can seek the agreement of an employee for his or her
hours to be averaged over a certain period.
31For example, in response to changing demands in workload, your could
ask an employee to work 50 hours per week in the month leading up to
Christmas, and drop back to 26 hours per week for a month in the new
year when things slow down. Arrangements of this type can only occur
if the employee agrees to them in writing.
5.7 Can I force my employees to cash out
annual leave because I really need all hands
on deck?
No. Employees cannot be forced to cash out annual leave. They can
choose to cash out up to 2 weeks’ annual leave if they want to, but only
if a workplace agreement expressly allows for this and they request the
cash out in writing.
5.8 Can I now dismiss employees for any
reason?
No. Under Work Choices it is unlawful for you to dismiss employees for
a number of reasons (see section 3.5). In addition, even though your
employees may now be unable to access unfair dismissal laws, they
may be able to take action through other legal avenues (eg: a breach
of contract claim, or a claim under the Trade Practices Act (Cth) or the
Consumer Affairs and Fair Trading Act (NT)).
Therefore, you still face risks if you dismiss an employee without having
a valid or lawful reason.
325.9 Can I still seek the assistance of the
Australian Industrial Relations Commission
to resolve industrial disputes?
Yes. Work Choices encourages parties to a dispute to resolve it
between themselves However, where a dispute cannot be resolved
at the workplace level, the parties can agree to refer the matter to the
Australian Industrial Relations Commission, or a private alternative
dispute resolution provider, for assistance (see section 3.6).
5.10 What procedure do I need to follow when
making a workplace agreement?
After the terms of the workplace agreement have been finalised, you
need to provide the employee with:
• a written copy of the agreement; and
• an Information Statement (see section 3.3.2),
and allow the employee 7 days to consider these documents (unless
the employee agrees to a shorter period). Once the workplace
agreement has been signed it needs to be lodged with the Australian
Government’s Office of the Employment Advocate, along with a
statutory declaration attesting to compliance with the agreement making
and content requirements under Work Choices. You can face significant
penalties if you lodge a workplace agreement that contains prohibited
content (see section 3.3.3). To minimise this risk, you can request
that the Office of the Employment Advocate review the workplace
agreement before it is lodged.
335.11 What employee records do I need to keep?
The Work Choices regulations contain very detailed record keeping
requirements in relation to employees and you can be fined if you fail to
comply with them. Records must contain specific details about:
• the nature and type of employment,
• hours worked;
• pay;
• annual, personal or other leave;
• superannuation contributions; and
• termination of employment.
In addition, there are separate requirements relating to what information
must be contained in pay slips.
Most employers will need time to implement new record keeping
arrangements in order to comply with these specific and detailed
requirements. For this reason, penalties cannot be imposed for a failure
to comply in the first 6 months of Work Choices’ operation.
As an employer, you should carefully check the regulations and assess
the requirements against your current practices to determine what
changes you need to make.
346. Further information
For further information on Work Choices and other work-related matters
you can:
• Contact the Northern Territory Workplace Advocate on
1300 852 899 or by email
workplace.advocate@nt.gov.au or visit the website at
www.nt.gov.au/ ntworkplaceadvocate
• Contact the Australian Government’s Office of the Employment
Advocate on 1300 366 632 or visit the website at
www.oea.gov.au
• Contact the Australian Government’s Office of Workplace
Services on 1300 363 264 or visit the website at
www.ows.gov.au
• Visit the ACTU’s “Your Rights At Work” website at
www.rightsatwork.com.au
• Visit the Australian Government WorkChoices website
www.workchoices.gov.au
• Contact your relevant union, or if you are unsure of which
union may be able to help you, contact UnionsNT on
(08) 8941 0001
• Contact the Chamber of Commerce Northern Territory
on (08) 8936 3100 or visit the website at www.chambernt.com.au
(for employment related assistance in relation to your business)
• NT Working Women’s Centre on (08) 8981 0655 or visit the
website at www.wwc.org.au
35• Visit the Wagenet website at www.wagenet.gov.au
(for information on existing awards and certified agreements)
• Contact the Northern Territory Anti-Discrimination Commission
on 1800 813 846 or visit the website at www.nt.gov.au/justice/
adc (for discrimination and harassment matters)
• Contact NT WorkSafe on 1800 019 115 or visit the website at
www.worksafe.nt.gov.au (for occupational health and safety or
workers’ compensation matters)
• Contact the Department of Employment Education and Training
on (08) 8901 1357 or visit the website at www.deet.nt.gov.au/
training (for training and apprenticeship matters).
36Workplace Agreement Checklist
What you need to check before you agree to a
Workplace Agreement
Choosing whether to enter into a Workplace Agreement is an important
decision that will have significant effects on your pay, working conditions
and legal protections.
Under Work choices proposals you are responsible for checking your
own Workplace Agreement. There will no longer be a formal approval
process, and Agreements will be effective immediately upon lodgement
to the Australian Government Office of the Employment Advocate.
Some award entitlements, like meal breaks, rostered days off and
flexible work arrangements, can’t be measured in dollars and cents.
Consider the value of these benefits carefully when assessing the terms
offered in your Agreement.
Remember, for a small increase in your pay you
may be asked to give up important rights and
conditions.
37Before you agree:
Check your employer has provided you with a copy of the
proposed Agreement and an information statement from the
Office of Employment Advocate that explains the
terms and conditions.
Check your current entitlements under an award or agreement
against the proposed Agreement.
Check the Agreement provides for meal breaks.
Check the Agreement provides for overtime rates.
Check the Agreement provides for weekend, late night and
public holiday penalty rates.
Check the Agreement includes shift, uniform, vehicle and travel
allowances.
Check the Agreement includes annual leave loading.
Check the Agreement contains a notice of termination clause
and redundancy pay.
Check the Agreement clearly shows whether you have
access to these conditions or not: public holidays, rest breaks,
bonuses, annual leave loading, allowances, penalty rates and
shift/overtime loadings. (Think about whether you have gained
adequate compensation if they are removed.)
38 Check the Agreement contains a provision for pay increases.
(Agreements may operate for a period of up to five years without
the inclusion of a pay increase.)
Check you have been given the right to seek support
from a friend, family member, union representative or any other
person to conduct Agreement negotiations on your behalf, as a
bargaining agent.
Check the Agreement contains a clause which clearly states the
options available to you when it expires. (If it isn’t replaced
by another Agreement your entitlements will be
significantly reduced.)
Check you have been given seven days to consider the
Agreement which is the time currently required by the
Australian Government.
If you are under 18, parental or guardian consent is required
for the Agreement to be legally binding. For an agreement to be
valid there must be genuine consent.
Do not allow yourself to be pressured into signing an Agreement that
doesn’t suit your individual needs.
An Agreement is a voluntary agreement; don’t sign if you don’t want to!
Visit the Northern Territory Workplace Advocate website at
www.nt.gov.au/ntworkplaceadvocate if you need help making an
informed decision about trading your pay and conditions.
The Northern Territory Workplace Advocate gratefully acknowledges
the New South Wales Government’s development of this Checklist
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