Work Choices: managing new contracts and existing claims

On 19 March 2006 the Federal Government finally announced that Work Choices will commence on Monday 27 March 2006 and released the much awaited Workplace Relations Regulations 2006.

The Workplace Relations Regulations 2006 resolve a number of questions left unanswered by the Work Choices, including:

• whether any existing claims, including unfair dismissal and unfair contract proceedings, can proceed unaffected by Work Choices;

• detailing what is "prohibited content" for workplace agreements and transitional instruments.

Existing claims

Work Choices says, amongst other things, that it operates to the exclusion of state laws dealing with termination of employment and unfair contracts.

The Workplace Relations Regulations 2006 make clear that this exclusion only operates with respect to dismissals after 27 March 2006 and unfair contract claims not yet commenced. Employees dismissed before 27 March 2006 can still bring an unfair dismissal claim under state industrial laws but must do so within 21 days. But to bring an unfair contract claim in NSW the employee must lodge the claim by 4pm on Friday 24 March 2006, being the latest time the NSW registry ordinarily closes before Work Choices commences on 27 March 2006; unless the hours are extended.

Prohibited content

A workplace agreement must not contain "prohibited content". But what is "prohibited content"? If a term does not pertain to the employment relationship it is prohibited.

The Workplace Relations Regulations 2006 also says that terms that deal with the following matters are prohibited:

• deductions from the pay or wages of an employee for trade union membership subscriptions or dues;

• the provision of payroll deduction facilities for the trade union subscriptions or dues;

• trade union leave;

• paid leave to attend meetings conducted by trade unions;

• the renegotiation of a workplace agreement;

• the rights of unions to participate in, or represent an employee bound by the agreement in the dispute settling procedure, unless the union is the representative of the employee's choice;

• the rights of unions to enter the premises of the employer bound by the agreement;

• on the engagement of independent contractors and requirements relating to the conditions of their engagement;

• the forgoing of annual leave credited to an employee bound by the agreement otherwise than in accordance with the Act;

• the provision of information about employees bound by the agreement to a trade union unless provision of that information is required or authorised by law;

• encouraging or discouraging union membership;

• rights and remedies in relation to harsh, unjust or unreasonable terminations;

• prohibiting the disclosure of details of a workplace agreement and

• restricting the ability to offer and enter into an AWA.

However, the "prohibited content" for the purposes of a transitional instrument appears to only be any term that restricts the ability to offer and enter into an AWA.

Are you ready?

On 27 March 2006 any existing state or federal industrial awards or agreements will become transitional instruments and thereafter determine employment obligations until a workplace agreement is made.

Employers ought to keep a copy of their award and agreements as at midnight 26 March 2006 as those documents, as they are at that moment, will determine rights and obligations until a workplace agreement is made.