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Workplace Relations Amendment (Work Choices) Bill 2005

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Workplace Relations Amendment (Work Choices) Bill 2005 Parliament of Australia Department of Parliamentary Services Parliamentary Library BILLS DIGEST Information analysis and advice for the Parliament 2 December 2005, no. 66, 2005–06, ISSN 1328-8091 Workplace Relations Amendment (Work Choices) Bill 2005 Law and Bills Digest Section Social Policy Section Economics, Commerce and Industrial Relations Section1 Contents Glossary ............................................................. 7 Purpose.............................................................. 9 Structure of the Bill ..................................................... 9 Scope and structure of the Bills Digest ....................................... 9 Key features of the proposed new law....................................... 10 Key issues in the Bill ................................................... 12 Key publications accompanying this Bills Digest............................... 17 History of this Bill..................................................... 17 Discussion of the Bill................................................... 19 Schedule 1 of the Bill .................................................19 Part I: Preliminary...................................................19 Background ...................................................... 19 Main provisions ................................................... 19 Comment ........................................................ 22 Part IA: Australian Fair Pay Commission ..................................23 Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill. Workplace Relations Amendment (Work Choices) Bill 2005 3 Main provisions ................................................... 23 Comment ........................................................ 24 Part II: Australian Industrial Relations Commission .......................... 28 Main provisions ................................................... 28 Comment ........................................................ 29 Part IVA: The Employment Advocate .................................... 29 Part V: Workplace inspectors .......................................... 30 Part VA: The Australian Fair Pay and Conditions Standard ..................... 32 Background to Part VA.............................................. 33 Main provisions ................................................... 33 Part VB: Workplace agreements ........................................ 40 Background ...................................................... 40 Main provisions ................................................... 41 Comment ........................................................ 45 Part VC: Industrial action ............................................. 46 Background ...................................................... 46 Main provisions ................................................... 47 Industrial action, freedom of association and international obligations ............ 50 Part VI: Awards .................................................... 53 Main provisions ................................................... 53 Comment ........................................................ 57 Part VIA: Minimum entitlements ........................................ 57 Division 1—Entitlement to meal breaks .................................. 57 Division 2—Equal remuneration for work of equal value ..................... 57 Division 3—Termination of employment—unfair dismissal ................... 58 Division 5—Parental leave ........................................... 61 Part VIIA: Transmission of business rules ................................. 61 Background ...................................................... 61 What the Bill does ................................................. 63 Part VIIA: Dispute resolution processes ................................... 67 Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill. 4 Workplace Relations Amendment (Work Choices) Bill 2005 Model dispute resolution process ....................................... 67 AIRC-conducted alternative dispute resolution ............................. 72 Focus on private dispute resolution ..................................... 76 AIRC-conducted ADR and proposed collective agreements.................... 77 AIRC-conducted ADR and workplace agreements .......................... 77 ADR conducted by another provider .................................... 77 Part VIII: Compliance ................................................78 Main provisions ................................................... 78 Part IX: Union right of entry ...........................................81 Background ...................................................... 81 Main provisions ................................................... 82 Comment ........................................................ 83 Part XA: Freedom of association ........................................83 Background ...................................................... 83 Main provisions ................................................... 84 Part XI: Offences ...................................................85 Part XIII: Miscellaneous ..............................................85 Costs orders ...................................................... 85 Variation of workplace agreements ..................................... 85 Part XIV: Jurisdiction of the Federal Court and Federal Magistrates Court ..........86 Part XV: Matters referred by Victoria.....................................87 Referral of constitutional power ........................................ 87 Main provisions ................................................... 88 Transitional provisions contained in Schedule 1 of the Bill .....................89 Amendments to Schedule 1B of the WR Act 1996 .......................... 89 New Schedule 13: Transitional arrangements for parties bound by federal awards ......................................................... 90 New Schedule 14: Transitional arrangements for existing pre-reform Federal agreements etc. ................................................... 93 New Schedule 15: State employment agreements and state awards............... 97 Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill. Workplace Relations Amendment (Work Choices) Bill 2005 5 New Schedule 16: Transmission of business rules (transitional instruments)....... 101 Schedule 2 of the Bill—Transitional arrangements for State organisations .......... 104 Schedule 3 of the Bill—School-based apprentices............................ 105 Schedule 4 of the Bill—Transitional and other provisions ...................... 105 Schedule 5 of the Bill—Renumbering the Workplace Relations Act............... 107 Concluding comments ................................................. 107 Constitutional issues ................................................. 107 Corporations power................................................. 108 Will choosing the corporations power simplify the WR system? ............... 110 Vertical coverage of the WR system—‘covering the field’ ................... 111 Federal balance.................................................... 111 Express limitations contained in the Constitution ........................... 112 Circumvention of express limitations in the Constitution..................... 113 Expropriation on just terms .......................................... 113 Implied limitations under the Constitution ................................ 114 The implied freedom of political communication .......................... 114 The implied freedom of association .................................... 115 Henry VIII clauses and the Commonwealth’s law-making powers ............... 115 Can the use of Henry VIII clause undermine parliamentary supremacy?.......... 116 Can broad executive law-making powers undermine the rule of law? ............ 117 Australia’s international obligations ...................................... 117 Compliance with the Australia-United States Free Trade Agreement ............. 117 Compliance with ILO Conventions ..................................... 118 The proposed workplace reforms—potential economic aspects of the changes ....... 119 The proposed workplace reforms—important social dimensions of the changes ...... 121 Some consider the IR reforms will have social benefits ....................... 121 Some consider the IR reforms will have adverse social impacts ................. 123 Social impact on specific groups ....................................... 123 Academic opinion on social impacts of the proposed IR reforms ................ 124 Appendix A—Summary of impact of WorkChoices changes on employers ........... 126 Warning: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status
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