There’s no way a common law contract can buy out non-monetary conditions like leave entitlements but my comment was directed at Ken P’s, in which he seemed to be talking about things like penalty rates.

In principle there's no reason why a common law contract couldn't allow an employer to ignore things like shift loadings, as long as the total payment under the contract exceeded the amount payable under the award. My recollection is that there was a case a long time ago where a building subcontractor was found not to be breaching the award even though it was paying an all-in hourly rate, because it resulted in higher remuneration than the award would have even after you added up all the penalty rates and disability payments and so on. Certainly I would have thought the matter could be put beyond doubt if the legislation was suitably worded.

Also what about the negative comments against the current IR laws by the small business owner, which reflects my personal experiences with SMEs over the last year?

Finally, what about the next round of Howard reforms, the ones he has denied are going to take place but keeps raising its ugly head, and Hendy yet again skirted around the question when it was raised?

As to the attempted simplification of the system from 1997-2000, let us not forget who was in charge of that simplification and their ideological goals on IR going back to the Fraser government.

What he actually said in context:

DAVID EDWARDS: There's a great theory, this, but in practice before we had AWAs, businesses, small businesses in retail and hospitality didn't use collective agreements and they won't in the past and they won't use individual contracts. I'm very interested in Julia Gillard's award system. I'd love to see a much more flexible and simpler award system and if Labor can deliver on that then that will meet the needs of many, many thousands of businesses. But quite frankly we've had decades of not achieving that. The last time we tried to simplify our award system it took three years, between 1997 and 2000, and we didn't really make much progress, but I'd love to see it take place.

———————-

(2) the young IT employer, who had never used anything but AWAs but who discovered that he will not be affected by ALP policy as his workers have above award conditions, which can be seamlessly adjusted to common law contracts;

What actually occurred:

MICHAEL MALONE: Can I say, in our case, the base rates are above the award and we still pay penalty rates to all staff.

JULIA GILLARD: And you will get a tick under Labor's system. Nothing will change for you.

MICHAEL MALONE: How do we transition? What would we move to?

JULIA GILLARD: If you are paying above the award you will simply move to common law contracts. You won't notice the difference for a second.

The "young employer" Malone pursed his lips and looked disbelieving.  And well he might, because what Gillard said was actually quite misleading.  Irrespective of how much above the award the employer was paying,  a Gillard common law contract would still not permit any form of trade-off of higher base pay rates for other terms or conditions (e.g. shift penalties).  Thus, Malone could only transition smoothly as Gillard claims if he was already meeting all award conditions in full (including but not just penalty rates) as well as paying above award hourly rates.  Which is why Malone looked utterly unconvinced and didn't "discover" anything except perhaps what a glib propagandist Gillard undoubtedly is.

It's a strange relationship between employers and employees, and probably always had an Us vs Them component.  But there's more to it, because generally from my observations there is also comprised a degree of respect one for the other.  The blending or interaction of these amongst other things seems to set the dynamic through which legislation has to walk forward.

It's clear Howard botched it, which is a shame, because there was real ground for him to take, which importantly would have been good for the country.  Had he moved gently towards reform, picking the very worst of the system and fixing it favourably, which would have arguably been a middle road between employers and employees, he would first have won the respect if not approval for his moves in that direction. He would have done this after having obtained control of the senate and won perhaps a heap of brownie points with commentary framing a moderate change by such level-headed action.  It is unreal that he did not see the sensitivities before choosing a massive upheaval.

So what we have now is a debate ever polarising because of the highlighting of the division, the Us vs Them component, in IR.   Bringing the divisions to light of itself punctures the WorkChoices idea and emits the stench of a no go plan.
People sense that division about not only WorkChoices but the whole IR debate now, as the unions issue comes to light for Labor.  IR is very unpleasant, I would suspect, for voters to behold, and to be forced to be a part of.

Voters which are passionately engaged in the issue, at a guess, would be unsatisfied come what may, either being markedly one side or the other, or looking for sense in the whole thing which suits their idea of how the employer employee relationship should work. With working conditions having changed and in such a state of flux, that's not a recipe for mass satisfaction.

I still think Rudd has ground to claim and name, though, residing between the individual and the collective.  It would, at least, reframe the debate under a new term (note the power of terms: WorkChoices), and giving off the impression of healing division, which at a guess would be attractive.

He was probably preparing for his spot on Playschool, er Mornings with Kerri-Anne:

“WORKPLACE Relations Minister Joe Hockey has worn a green headband with ears to imitate animation figure Shrek on morning television while trying to explain the Governments industrial relations reforms.”

My first point is, did you notice how Hendy immediately started obfuscating the moment the next round of Howard IR laws for next year were mentioned. He (and by rote Howard) knows if those details ever get released before the polls then it will be curtains for the Coalition next election.

Then right on cue (probably the start of many such favourable polls that will be rolled out with the same monotony as the tax payer funded party political ads), a poll comes out stating that a massive 80% of Australian small business are very happy with Howards IR laws and his handling of the economy. Then a survey following that of how economic growth is the best for a long time and going "gang busters", with the obligatory Costello interview saying what great handlers of the economy they are.

The second survey on economic growth is neither here nor there in this topic, but the first one on small business is. It goes compleltely against what the small business owner was saying on Insight, and also against what I am hearing from small businesses in my locality. I find it extremely difficult to believe that a massive 80% of small businesses are happy with Howard's IR laws.