Retailers have been flocking in droves to agreement making in the federal workplace relations system since the introduction of the WorkChoices workplace reforms. Workchoices introduced greater flexibility for employers and employees to negotiate terms and conditions of employment suited to the individual workplace. In fact some 60,000 individual workplace agreements (Australian Workplace Agreements) have been entered into in the retail industry since the WorkChoices reforms commenced.
The abolition of the cumbersome “No Disadvantage Test” and the introduction of an operation upon lodgement system were two WorkChoices reforms spurring retailers to opt out of awards with their employees and enter into workplace agreements. Under WorkChoices federal agreements need to contain some mandatory content such as a nominal expiry date and a dispute settlement procedure, must meet the Australian Fair Pay and Conditions Standard and cannot include prohibited content. “Protected Award Conditions” apply in a workplace agreement unless expressly modified or excluded by the agreement.
“Protected award conditions” include penalty rates (including penalty rates for public holidays), annual leave loading, rest breaks, overtime and some monetary allowances. From 27 March 2006 it had been a lawful outcome, if not necessarily a practical or desirable one, to completely exclude the “protected award conditions” and not provide other compensation for the removal provided an employee genuinely approved the workplace agreement and that agreement expressly detailed how the agreement removed such conditions. Workplace agreements, that have done so have attracted substantial controversy, union criticism, media attention and appear to have contributed to the ALP policy to completely get rid of statutory individual workplace agreements, should they win government.
