Working carers concerned about their employment security should know that most aspects of the new workplace legislation, WorkChoices, passed in Federal Parliament earlier this month, will not take effect until March 2006. A leading employers group has notified its members of their obligations to continue with the current industrial relations system, particularly in relation to dismissing staff, until further notice. The NSW Government’s plan for a High Court challenge to the legislation may also delay its implementation.
“Given that we are in a legislative twilight period, employers should continue to comply with existing state and federal workplace relations legislation until the new legislation is proclaimed in 2006”, says a bulletin sent by Australian Business Limited to its members.
Existing laws prohibit unfair dismissal, but under the Federal Government’s new WorkChoices legislation, employers with less than 100 employees will be exempt from unfair dismissal laws except on discriminatory grounds.
This means that while employers will be prohibited from dismissing employees because of their caring responsibilities (a discriminatory ground), they will be able to dismiss staff, including carers, without giving a reason. This means they can avoid their actions being challenged by anti-discrimination tribunals.
Although Australian Business Limited expects most of the new laws to take effect in mid-March, the Government has given no timetable, the bulletin says.
The bill became law when it received the Governor General’s ‘Royal Assent’ last Wednesday.
While most changes will take effect in March, it is important to note that three aspects of the changes commenced at assent. They are the Australian Fair Pay Commission, school based apprenticeships and trainees and the removal of the requirement for small businesses (fewer than 15 employees) to pay severance pay to some redundant employees.
Because the Government has based its new laws on the corporations power – under the Australian Constitution – only incorporated bodies will be taken into the new national system. If you work for an unincorporated organisation, it will have to incorporate to use the new system.
The use of the corporations power to enact the new laws will be challenged by the NSW State Government in the Australian High Court on the grounds that it is unconstitutional. It will be argued that under the Constitution the Federal Government cannot enact laws regulating the industrial relations of corporations and their employees.
According to the NSW Department of Industrial Relations’ website ‘Fairgo’, the Federal Government's changes will be based on the 'corporations' head of power. This is a distinct authority, completely unconnected to the conciliation and arbitration powers that our constitutional framers had in mind. The website states that the New South Wales Government considers that this is a misuse of constitutional power and it will be met with fierce resistance.
A spokesperson for the NSW Minister for Industrial Relations, Mr John Della Bosca, says the NSW Government is also considering seeking a stay of the legislation by applying to the High Court. If this were granted the proclamation of the new laws could be delayed.
The NSW Government website says the Australian Constitution contains an explicit power concerning the regulation of industrial relations. That power makes it clear that industrial relations are an area in which the powers of the Commonwealth and the states are to be shared.
“Section 51 of the Constitution allows the Federal Government to make laws to deal with disputes that cross state borders, whilst the state governments have the power to make laws that deal with intra-state disputes’, the website says.
“The Howard Government is now challenging these established and proven roles through its new industrial relations laws”.
By using the corporations power, all constitutional corporations will compulsorily move into the federal system even if they currently operate in the state system. In addition, any state industrial laws will cease to apply to constitutional corporations.
The NSW Government objects to the Federal Government’s move to override State laws and what it says is a fairer State industrial relations system.
Whether or not the laws are successfully challenged, corporations will continue to be subject to a range of state laws on health and safety, workers compensation, training and discrimination.
Existing unfair dismissal claims awaiting hearing in state jurisdictions will be heard despite the new laws effectively closing down these jurisdictions, the Federal Government says.
In a report in the Sydney Morning Herald on December 13, the Federal Government pledged to spare these claims after conceding their immediate cessation was an unintended consequence of its overhaul of work laws.