On 13 February 2008 the Federal Minister for Employment and Workplace Relations, Julia Gillard MP, introduced the first of Labor’s amendments to the Workplace Relations Act 1996, the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 ("Bill")
Below is a summary of what the Bill proposes to do:
- No More Australian Workplace Agreements ("AWA")
• From the commencement date of the Bill (yet to be determined), no one will be able to make a new AWA.
• Current AWAs will continue until their nominal expiry date.
• Any AWA made before the commencement date of the Bill must be lodged within 14 days of the commencement date.
- Individual Transitional Employment Agreements ("ITEA")
• If your business used AWAs prior to 1 December 2007, you will be able to enter into an ITEA with any new employees or employees who were previously employed on AWAs.
• An ITEA will have a nominal expiry date of 31 December 2009.
• From 1 January 2010, Labor hopes that its new National Employment Standards (“Standards”) will be in operation and that there will then be no need for any individual statutory employment agreements.
- New No Disadvantage Test
The current “fairness” test will be scrapped, and replaced with a new no disadvantage test for all ITEAs and collective agreements.
To pass the no disadvantage test:
• an ITEA must not disadvantage the employee when compared to an applicable collective agreement, or if there is no such agreement, an applicable award and the Australian Fair Pay and Conditions Standard;
• a collective agreement must not disadvantage employees in comparison with an applicable award and the Australian Fair Pay and Conditions Standard.
This test will also apply to variations to existing agreements (i.e. AWAs or collective agreements made before the Bill comes into force).
- Other Proposed Amendments
The Bill also sets out various other changes to the current Workplace Relations Act 1996. These include:
• repeal of the provisions entitling an employer to unilaterally terminate a collective agreement that has passed its nominal expiry date. Under the Bill, the collective agreement will only be able to be terminated where the parties agree, or by the Australian Industrial Relations Commission (AIRC);
• employees subject to an AWA or ITEA will be able to approve new collective agreements and variations to collective agreements;
• repeal of the requirement that employers must provide a copy of the Workplace Relations Fact Sheet to employees; and
• provision of the means to commence the award modernisation process. (Labor intends that the new “modern and simple” awards will come into force on 1 January 2010).
It remains to be seen how the Bill is received by the Liberal-Nationals Coalition, and whether the Bill is passed in the Senate while it is controlled by the Coalition up until 30 June 2008. Accordingly, we do not know at this stage when the Bill will come into force.
This is also not the end of the changes to the Workplace Relations Act 1996. Julia Gillard has announced that she will release an exposure draft of the 10 National Employment Standards on 14 February 2008. Further legislation will also be required to deal with Labor’s other proposals, including changing the laws dealing with unfair dismissal (employers with 100 employees or less are still immune to claims of unfair dismissal), abolishing the Australian Industrial Relations Commission and establishing the new body, ‘Fair Work Australia’.
Further developments will be posted to this website as they become available. Should you require further information in relation to this article, please contact Louise Houlihan, Partner, on 9608 2273 or l.houlihan@cornwalls.com.au or
Clare Hudson, Senior Associate on 9608 2140 or c.hudson@cornwalls.com.au
