13 March 2007
Key Points:
Given the number of initiatives the States are taking, the job of determining whether the State or Federal legislation applies is becoming more complicated for employers.
In November 2006, the High Court dismissed the States' and unions' challenge to the constitutional validity of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Work Choices"). Following the decision, the State Labor governments planned further resistance to Work Choices.
Interestingly, the States are increasingly showing their resistance other than through legislation, for example, through the use of public procurement policies, codes of practice, financial subsidies, and best practice case studies or guidelines.
A roll-call around the States shows some of the most recent responses.
New South Wales
Industrial Relations (Child Employment) Act 2006: The Act sets minimum conditions of employment for those under 18. Employers operating under the Work Choices system must provide pay and conditions at least equal to the NSW award that would have applied to the work (plus any applicable NSW industrial legislation, such as the Annual Holidays Act 1994). Children employed by these employers also have remedies for unfair dismissal.
Industrial Relations Further Amendment Act 2006: The Act relocates injured workers' reinstatement provisions from the Industrial Relations Act 1996 to the Workers' Compensation Act 1987, making it clear that Work Choices does not apply.
Parliamentary Inquiry 'Impact of the Work Choices Legislation': The Parliamentary Inquiry conducted by the Legislative Council's Standing Committee on Social Issues reported back on 23 November 2006 and recommended, among other things, that the State Government establish an Office of the Workplace Rights, similar to that in Victoria, to assist employees, employers and independent contractors to negotiate pay and conditions under the new Federal system and to monitor unfair and unlawful industrial practices.
Procurement policy: The State Government is piloting an industrial relations requirement in the upcoming contract for the provision of courier and other delivery services. If successful, the requirement will be implemented across Government. Under the Courier Delivery Services tender, a contractor must ensure that any person who is an employee or contractor, when performing work under the tender, receives remuneration and entitlements, which, on balance, provide no less than the remuneration and entitlement that would otherwise apply from time to time to a person performing the same or similar work under an industrial instrument made under the Industrial Relations Act 1996.
Queensland
Queensland Industrial Relations Commission 'Final Report: Inquiry into the Impact of Work Choices on Queensland Workplaces, Employees and Employers': The Inquiry released its final report on 29 January 2007 and recommended the establishment of a separate statutory body similar to that of the Victorian Workplace Rights Advocate.
Child Employment Amendment Regulation (No 1) 2006: This amendment covering the entertainment industry was effective from 1 January 2007. The Regulation extends the protection of the existing child employment laws (the Child Employment Act 2006 and the Child Employment Regulation 2006, which both commenced in 1 July 2006) to children and young workers in the entertainment industry.
South Australia
Statutes Amendment (Public Sector Employment) Act 2006: This Act moves employees of Government-owned corporations out of the reach of Federal legislation. The Act has not yet come into operation.
Draft South Australian Clothing Outworker Code: The draft South Australian Clothing Outworker Code of Practice was released for a three-month public consultation period which concluded on 2 February 2007. The draft Code endeavours to secure the fair treatment of outworkers consistent with best practice in the industry and the principles and objectives of the Fair Work Act 1994.
Implications
Given the number of initiatives the States are taking, the job of determining whether the State or Federal legislation applies is becoming more complicated for employers. The failure to reach agreement between the States and the Commonwealth on the matter of industrial relations may well make life more difficult for employers.
Thanks to Afrooz Kaviani Johnson for her help in writing this article.
