Hostname: page-component-76fb5796d-2lccl Total loading time: 0 Render date: 2024-04-25T08:27:40.729Z Has data issue: false hasContentIssue false
  • English
  • Français

How Low Can You Go? Minimum Working Conditions under Australia’s New Labour Laws

Published online by Cambridge University Press:  01 January 2023

Colin Fenwick
Colin Fenwick*
Affiliation:
Centre for Employment and Labour Relations Law, University of Melbourne
Get access Rights & Permissions [Opens in a new window]

Abstract

The Work Choices package of legislative reforms has significantly altered both the institutions and the instruments of the federal regulatory architecture for setting minimum working conditions. This paper surveys the reduced role of awards and of the Australian Industrial Relations Commission, before considering the function and content of the Australian Fair Pay and Conditions Standard and Australian Pay and Classification Scales, as well as the role of the newly created Australian Fair Pay Commission. It argues that the Work Choices reforms have shifted power over the setting of minimum working conditions to the government, which will set many conditions directly, and to employers, who will be entitled to require employees to be party to workplace agreements that displace very many of the minimum working conditions that are otherwise purportedly guaranteed. These shifts have opened up the space for significant reductions in minimum working conditions, as well as for falls in real wages for those not able to benefit from wage bargaining.

Type
Work Choices: A Critical Analysis
Information
The Economic and Labour Relations Review , Volume 16 , Issue 2: Work Choices: A Critical Analysis , May 2006 , pp. 85 - 126
Copyright
Copyright © The Author(s) 2006

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

I thank Rosemary Owens (University of Adelaide) and Brendan Avallone (Minter Ellison, Melbourne) for their helpful comments on an earlier draft, and Ingrid Landau for her research assistance in the preparation of this paper. Any errors or omission are mine alone.

References

ABC Television. (2005) ‘Howard asks Australia to trust Government's economic record’, The 7.30 Report, [Online], Available: http://www.abc.net.au/7.30/content/2005/s1479023.html [accessed 10 October 2005]Google Scholar
Alston, P. (2005) ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’, European Journal of International Law, 15: 457–421.Google Scholar
Arup, C., Howe, J., Mitchell, R., O'Donnell, A. and Tham, J-C. (2000) ‘Employment Protection and Employment Promotion: The Contested Terrain of Australian Labour Law’ In Biagi, M. (Ed), Job Creation and Labour Law: From Protection Towards Pro-action, Kluwer Law International.Google Scholar
Australian Bureau of Statistics (ABS). (2005) Employee Hours and Earnings, Australia, Cat. 6306.Google Scholar
Centre for Employment and Labour Relations Law. (2005) Submission to Senate Employment, Workplace Relations and Education Legislation Committee, Inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005, Submission No 96, [Online], Available: http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/index.htm) [accessed 9 November 2005].Google Scholar
Chapman, A. (2006) ‘Unfair Dismissal Law and Work Choices: From Safety Net Standard to Legal Privilege’, Economic and Labour Relations Review, 16 (forthcoming).Google Scholar
Creighton, W. and Stewart, A. (2005) Labour Law, (4th Edn), Federation Press, Sydney.Google Scholar
Creighton, W. (1998) ‘The ILO and the Protection of Fundamental Human Rights in Australia’, Melbourne University Law Review, 22: 239–280.Google Scholar
Dabscheck, B. (2001) ‘The Slow and Agonising Death of the Australian Experiment with Conciliation and Arbitration’, Journal of Industrial Relations, 43: 277–293.CrossRefGoogle Scholar
Fenwick, C. (2003) ‘Protecting Victoria's Vulnerable Workers: New Legislative Developments’, Australian Journal of Labour Law, 16: 198–213.Google Scholar
Forbes-Mewett, H., Griffin, G. and McKenzie, D. (2003) ‘The Australian Industrial Relations Commission: Adapting or Dying?’, International Journal of Employment Studies, 11(2): 1–23.Google Scholar
Forbes-Mewett, H., Griffin, G. and McKenzie, D. (2005) ‘The Role and Usage of Conciliation and Arbitration in Dispute Resolution in the Australian Industrial Relations Commission’, Australian Bulletin of Labour, 31: 171–190.Google Scholar
Ford, W. (2005) ‘Politics, the Constitution and Australian Industrial Relations: Pursuing a Unified National System’, The Australian Economic Review, 38(2): 211–222.CrossRefGoogle Scholar
Gray, A. (2005) ‘Precedent and Policy: Australian Industrial Relations Reform in the 21st Century Using the Corporations Power’, Deakin Law Review, 10: 440–459.CrossRefGoogle Scholar
Hancock, K. and Richardson, S. (2004) ‘Economic and Social Effects,’ In Isaac, J. and MacIntyre, S. (Eds), The New Province for Law and Order: 100 Years of Conciliation and Arbitration, Cambridge, Cambridge University Press.Google Scholar
Howe, J. (2001) ‘The Job Creation Function of the State: A New Subject for Labour Law’, Australian Journal of Labour Law, 14: 242–268.Google Scholar
Howe, J., Mitchell, R., Murray, J., O'Donnell, A. and Patmore, G. (2005) ‘The coalition's proposed industrial relations changes: an interim assessment’, Australian Bulletin of Labour, 31(3): 189–209.Google Scholar
Jessup, C. (2002) ‘The Onus of Proof in Proceedings under Part XA of the Workplace Relations Act 1996’, Australian Journal of Labour Law, 15: 198–208.Google Scholar
King, J. and Stilwell, F. (2006) ‘The Industrial Relations “Reforms”: An Introduction’, Journal of Australian Political Economy, 56:5–12.Google Scholar
Kollmorgen, S. (1997) ‘Towards A Unitary National System of Industrial Relations’, Australian Journal of Labour Law, 10:158–169.Google Scholar
May, R. (2006) ‘The British Low Pay Commission and the Proposed Australian Fair Pay Commission’, Journal of Australian Political Economy, 56: 92–104.Google Scholar
McCallum, R. (2006) ‘The New Work Choices Laws: Once Again Australia Borrows Foreign Labour Law Concepts’, Australian Journal of Labour Law, 19 (forthcoming).Google Scholar
McCallum, R. (2005) ‘Plunder Downunder: Transplanting the Anglo-American Labor Law Model to Australia’, Comparative Labor Law and Policy Journal, 26: 381–399.Google Scholar
Mitchell, R. (2005) ‘Looking Back on a Century of Conciliation and Arbitration’, Australian Journal of Labour Law, 18: 193–195.Google Scholar
Mitchell, R., Campbell, R., Barnes, A., Bicknell, E., Creighton, K., Fetter, J. and Korman, S. (2005) ‘What's Going on With the No Disadvantage Test?: An Analysis of Outcomes and Processes under the Workplace Relations Act 1996 (Cth), Working Paper No 33, Centre for Employment and Labour Relations Law, University of Melbourne.Google Scholar
Mitchell, R. and Naughton, R. (1993) ‘Australian Compulsory Arbitration: Will It Survive into the Twenty-First Century?’ Osgoode Hall Law Journal, 31: 265–295.Google Scholar
Merlo, O. (2000) ‘Flexibilities and Stretching Rights: The No-Disadvantage Test in Enterprise Bargaining’, Australian Journal of Labour Law, 13: 207–235.Google Scholar
Murray, J. (2005) ‘The AIRC's Test Case on Work and Family Provisions: The End of Dynamic Regulatory Change at the Federal Level?’ Australian Journal of Labour Law, 18: 325–343.Google Scholar
Murray, J. (2005a) Submission to Senate Employment, Workplace Relations and Education Legislation Committee, Inquiry into the Workplace Relations Amendment (Work Choices) Bill 2005, Submission No 65, [Online], Available: www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/index.html [accessed 9 November 2005]Google Scholar
Naughton, R. (1997) ‘Sailing into Uncharted Seas: The Role of Unions Under the Workplace Relations Act 1996 (Cth)’, Australian Journal of Labour Law, 10: 112–132.Google Scholar
Owens, R. (2002) ‘Decent Work for the Contingent Workforce in the New Economy’, Australian Journal of Labour Law, 15: 209–234.Google Scholar
Peetz, D. (1998) ‘The Safety Net, Bargaining and The Role of the Australian Industrial Relations Commission’, Journal of Industrial Relations, 40: 532–553.CrossRefGoogle Scholar
Pittard, M. (2006) ‘Back to the Future: Termination of Employment Under the Work Choices Legislation’, Australian Journal of Labour Law, 19 (forthcoming).Google Scholar
Plowman, D. and Preston, A. (2006) ‘The New Industrial Relations: Portents for the Low Paid’, Journal of Australian Political Economy, 56: 224–242.Google Scholar
Pocock, B. and Masterman-Smith, H. (2006) ‘WorkChoices and Women Workers’, Journal of Australian Political Economy, 56: 126–144.Google Scholar
Raffin, L. (2005) ‘Baby Steps in The Right Direction? Does the New Maternity Payment Realise the Aims of Paid Maternity Leave?’, Australian Journal of Labour Law, 18: 270–291.Google Scholar
Rider, C. (2005) ‘Using Tax and Social Security to Reconstruct the Part-Time Labour Market: A Note on “Welfare to Work’”, Australian Journal of Labour Law, 18: 302–312.Google Scholar
Smith, B. (2003) ‘A Time to Value: Proposal for a National Paid Maternity Leave Scheme’, Australian Journal of Labour Law, 16: 226–233.Google Scholar
Smith, B. (2002) ‘Maternity Leave: Still Unpaid and Still Uncertain’, Australian Journal of Labour Law, 15: 291–297.Google Scholar
Stewart, A. (2005) The Work Choices Legislation: An Overview, Supplement to Creighton and Stewart (2005), Available: www.federationpress.com.au.Google Scholar
Stewart, A. (2001) Federal Labour Law and New Uses for the Corporations Power’, Australian Journal of Labour Law, 14: 145–168.Google Scholar
Victorian Industrial Relations Taskforce. (2000) Independent Report of the Victorian Industrial Relations Taskforce.Google Scholar
Waring, P. and Lewer, J. (2001) ‘The No Disadvantage Test: Failing Workers’, Labour and Industry 12(1): 65–86.CrossRefGoogle Scholar
Williams, G. (2005) ‘The Constitution and a National Industrial Relations Regime’, Deakin Law Review, 10: 489–510.CrossRefGoogle Scholar
Wooden, M. (2006) ‘Minimum Wage Setting and the Australian Fair Pay Commission,’Google Scholar