Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

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Inquiry into the Workplace Relations Framework

ACTU Submission to the Productivity Commission

This submission uses unit record data from the Household, Income and Labour Dynamics in Australia (HILDA) Survey. The HILDA Project was initiated and is funded by the Australian Government Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) and is managed by the Melbourne Institute of Applied Economic and Social Research (MIAESR). The findings and views reported in this report, however, are those of the authors and should not be attributed to either FaHCSIA or the MIAESR.

Table Contents

Table Contents ii

Index to Tables viii

Index to Figures ix

Appendices xi

Abbreviations xii

Key points and observations 1
Chapter 1

First Principles:

The Purpose of Industrial Relations Regulation. 13

Chapter 2

The International Context 19

Chapter 3

Competition Policy 26

Chapter 4

Labour Market Trends in the 21st Century: Australia and beyond. 30

Chapter 5

Measuring the Economic Impacts of Industrial Relations Regulation:

(A) Macroeconomic effects. 76

Chapter 6

Measuring the Economic Impacts of Industrial Relations Regulation:

(B) Compliance Costs 83

Chapter 7

Measuring the Economic Impacts of Industrial Relations Regulation:

(C) Gaps and Avoidance Incentives. 87

Chapter 8

The Safety Net:

(1) Minimum Wages 112

Chapter 9

The Safety Net:

(2A) The Award System. 142

Chapter 10

The Safety Net:

(2B) Penalty Rates 149

Chapter 11

The Safety Net:

(3) National Employment Standards. 168

Chapter 12

The Safety Net: (4) Resolving Disputes 191

Chapter 13

The Safety Net:

(5) Flexibility beyond and within. 193

Chapter 14

Collective Bargaining:

(1) Making an agreement. 210

Chapter 15

Collective Bargaining:

(2) Barriers to fair, efficient and effective agreement making in the Public Sector 246

Chapter 16

Collective Bargaining:

(3) While an Agreement is in Operation 271

Chapter 17

Individual Arrangements 275

Chapter 18

Employment Protections

(1) Unfair Dismissal 301

Chapter 19

Employment Protections:

(2) Unlawful Termination and General Protections 318

Chapter 20

Employment Protections:

(3) Workplace Bullying 327

Chapter 21

Accessing Workplaces 335

Chapter 22

Institutional Performance. 347

About the ACTU

The Australian Council of Trade Unions is the peak body representing almost 2 million working Australians.  The ACTU and its affiliated unions have a long and proud history of representing workers’ industrial and legal rights and advocating for improvements to legislation to protect these rights. 

Index to Tables

Index to Figures


1 . Table showing the major evolving features of modern industrial relations laws.

2. ACTU principles for labour chapters in trade agreements.

3. Case study: Sham contracting in construction industry.

4 . Case study: “Start up” agreements in the coal mining industry.

5. International comparison regarding rest days, work and compensation.

6 . Tests used by federal and state industrial relations systems to assess agreements against the safety net.

7. Case study: Agreement making in the construction industry.



Australian Industrial Relations Commission


Australian Workplace Agreement


Better Off Overall Test

C&A Act

Conciliation and Arbitration Act 1904

C&A Commission

Conciliation and Arbitration Commission

FW Act

Fair Work Act 2009

FW Commission / FWC

Fair Work Commission


Fair Work Australia


Fair Work Building Industry Inspectorate


Fair Work (Building Industry) Act 2012


Fair Work Ombudsman


Individual Flexibility Arrangement


International Labour Organisation

IR Act

Industrial Relations Act 1988


National Employment Standards


Productivity Commission

RO Act

Fair Work (Registered Organisations) Act 2009


Fair Work (Transitional Provisions and Consequential Amendments) Act 2009


Unfair Dismissal


Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Work Choices) Act 2005

WR Act

Workplace Relations Act 1996 as amended until March 2006.

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