Legal Comment by Mark Illidge of Hinterland Lawyers

December 2005

With conflicting views being espoused by government, unions and countless others, I will not attempt to comment on the potential impact of the Federal Government's WorkChoices legislation, but instead relay some facts.

Following assent to the legislation, the establishment of the Australian Fair Pay Commission (AFPC), workplace changes including the redundancy pay exemption for small businesses, and new rules for school-based apprentices have commenced.  Most of the changes in WorkChoices have not yet commenced - they will start on a day yet to be proclaimed - or if no proclamation is made then they will commence six months after assent.

The new AFPC will protect minimum and award classification wages. It will be responsible for setting and adjusting: the federal minimum wage; minimum award classification rates of pay; federal minimum wages for juniors, trainees and employees with disabilities; minimum wage for pieceworkers; and casual loadings.  The AFPC will determine the timing, scope and frequency of wage reviews, the manner in which wage reviews are to be conducted and when wage setting decisions are to come into effect.

Critically, the redundancy pay exemption for small business comes with a few conditions attached.  If a term of an award or order was made before 26 March 2004 that imposed a redundancy pay obligation on an employer of fewer than 15 employees, then that award/order provision will still apply.  Redundancy pay by an employer of fewer than 15 employees will no longer be an allowable award matter.

Awards and agreements under WorkChoices may not restrict the range or duration of apprenticeships and traineeships, and they must contain a clause permitting the employment of regular part-time workers. These provisions open the way for school-based and part-time apprenticeships and traineeships.  One of the federal government's arguments for creating a national industrial relations system is that the states have been tardy in providing for flexible apprenticeships and traineeships (that is, school-based and part-time) in state awards and agreements. 

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