ETHICAL EMPLOYMENT PRACTICES AND THE LAW 95from twenty to sixteen; second, the number of awards will be drastically
reduced over time on the basis of the recommendations of an Award Review
Taskforce; third the AIRC no longer has the capacity to make new awards,
other than as part of the award review process and has only limited capacity
to vary those that remain; and finally, it is now much easier to displace awards
through agreements (individual or collective) than in the past.
A newly established Australian Fair Pay Commission (AFPC) has responsi-
bility for setting and reviewing minimum wages at intervals to be determined
by itself. These wage rates, together with legislated minimum standards relat-
ing to annual leave, personal leave, parental leave, and maximum hours of
work constitute the Australian Fair Pay and Conditions Standard (AFPCS).
This, rather than the otherwise applicable award, is the reference point for new
agreements. Certain other award standards (e.g. relating to public holidays,
rest breaks, and penalty rates) are ostensibly ‘protected’ by law, but can be
bargained away so long as this is done in express terms in an individual or
collective agreement.
Third, the new legislation contains a number of measures that must
inevitably constrain the capacity of trade unions effectively to promote and
to protect the interests of their members. These include: making it more diffi-
cult to initiate protected (i.e. lawful) industrial action; investing the executive
government with power to terminate or suspend industrial action in a broad
range of situations and to make regulations that exclude issues such as trade
union training leave, paid union meetings, restrictions on the use of contract
labour, and unfair dismissal from the range of matters that can be dealt with
in agreements; making it easier for employers to enter into individual agree-
ments with their employees that have the effect of excluding the operation of
collective agreements and awards; introducing the somewhat bizarre concept
of agreements, between employers and themselves in situations where they
are about to engage in a new business, project, or undertaking but have not
yet engaged any employees to work in that business, project, or undertaking;
and further restricting the capacity of union officials to enter workplaces for
purposes of investigating breaches of awards or agreements or communicating
with members or potential members.
Taken together, these changes are the most far-reaching since the enactment
of the original Conciliation and Arbitration Act in 1904. Cumulatively, they
will significantly compromise the role of the law as a guarantor of ethical
behaviour in Australian workplaces. Indeed, in some respects they positively
entrench unethical behaviour—for example by severely limiting the capacity
of employees, through their chosen representatives, collectively to negotiate
terms and conditions of employment. As will appear presently, they also deny
many of the most vulnerable participants in the labour market protection
against arbitrary termination of employment.