Published in June 2006 Australian Longwall Magazine

The WorkChoices reforms have certainly changed the industrial relations landscape of Australia. The legislation has also received its share of bad press, sparked confusion and, at times, its complexity has been manipulated to spread false information to all who cared to lend their ears.

But when the dust finally settles, as it will, what can employers expect to find in the almost 1000 provisions of the new Workplace Relations Act? They will find a unified and simplified system that will apply to all their operations across Australia.

They will also find it easier to fairly compete for work, to mobilise a workforce onto site, to reach agreement on employment terms and conditions that make sense for their business, and to resolve their disputes in an effective fashion.

From both the perspective of owners and contractors on minesites, the WorkChoices reforms offer new ways to ensure projects are completed on time and within budget.

For example, at the start of a mining contract or project that involves construction or building work, owners and contractors alike will now have to take notice of the new Building and Construction Industry Improvement Act 2005 (BCII Act), which outlaws pattern bargaining and ensures that jobs are won on sound business criteria rather than a contractor’s relationship (or lack thereof) with a specific union.

This piece of legislation will require increased prudence from all parties during the managing and awarding of tenders on projects, including greater scrutiny of the hiring practices of contractors and sub-contractors.

So-called ‘collateral agreements’ or Memorandums of Understanding between employers and unions are also now unenforceable.

Operators of mines will also need to review the conditions they impose on contractors with respect to management of employee relations issues.

Some current practices could be found to be in breach of the BCII Act and hence subject to prosecutions or place the contractor in breach of the Building Construction Industry Code of Conduct.

The consequence of breaching the Code of Conduct could be to disqualify the contractor from future Federal Government-funded projects.

Apart from levelling the playing field during the tender phase, the new workplace agreements under WorkChoices now provide employers with the ability to mobilise very quickly, as agreements are now operative from the date on which they are lodged with the Office of the Employment Advocate (OEA).

The costly delays experienced whilst parties waited on an agreement to be certified or approved under the old system are now things of the past.

Employers who engage in a new business where no employees are as yet employed, also now have the ability to enter into an employer greenfields agreement, without the involvement of a third party.

Though these agreements have, unlike other new workplace agreements, a maximum term of only one year, they provide a new avenue for employers who need to mobilise a new workforce on short-term projects.

Employees and employers alike will now have greater certainty regarding employment conditions, as the new workplace agreements have a maximum term of five years, as opposed to the three years in the old dispensation. Simplified lodgement processes and a decreased role for the OEA in scrutinising content of agreements means reduced transaction time and costs for employers.

As far as the content of new workplace agreements are concerned, greater flexibility is provided on the operational front.

For example, clauses prohibiting the engagement of contract or labour hire employees are now banned. Greater flexibility does not, however, mean that employees can be stripped of existing entitlements: certain nominated protected award conditions and preserved award terms continue to apply to employees.

The new dispensation also introduces much more stringent requirements regarding the taking of protected industrial action and makes it clear that protected industrial action will not be possible during the life of a workplace agreement.

The powers of the Australian Industrial Relations Commission (AIRC) to deal with unprotected industrial action have been improved and for employers this means that more effective legal recourse can be taken to deal with illegal work stoppages.

For the first time, the legislation also now provides a third party (such as a client or contractor) with the right to intervene during unprotected industrial action and to seek orders against employees of another employer.

In future, greater cooperation between contractors and clients in the management of industrial action will clearly be required.

The right of entry for unions to workplaces to hold discussions with their members or investigate a breach of the Federal Act or agreements is all now regulated by the Federal Act.

Union representatives can only enter sites where they have members or where they have coverage and they can only view their members’ records (unless the AIRC provides a wider authority).

Union representatives must also hold a federal entry permit and provide advance notice before entering the site.

Some common sense improvements include the recognition of the right of the employer to require a union representative to adhere to site-specific occupational health and safety requirements when entering site.

All these new provisions add up to greater control and security for employers regarding union entry to site, whilst at the same time protecting the individual union member’s right to have access to his/her union.

However, the Federal legislation does not exclude the right of union officials to enter a site under State-based OH&S legislation.

Some states, like New South Wales, are attempting to expand this current right under their state system to make it possible for a union representative to enter a site where the union has no members, and indeed has no coverage on the site.

The outcome of such attempts to undermine the uniformity brought about by the federal legislation is as yet unknown.

The WorkChoices legislation, though comprehensive in its application field, does not affect all aspects of the employment relationship.

Critical elements such as OH&S are still regulated...click here to read on.