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The
Workplace Relations Amendment (Transition to
Forward with Fairness) Bill 2008 was tabled
in parliament on 13 February 2008. This Bill
is an amendment to the Workplace Relations Act
1996, effectively making a number of changes
to the framework for workplace agreements.
The amendments proposed by the Bill are intended
to give effect to the Government’s election
commitments and begin the transition to a new
workplace relations system.
The Bill is mainly directed
at one aspect of Work Choices – the abolition of AWAs – although
it also deals with the award modernisation process
and seeks to replace the Howard Government’s
Fairness Test with a No Disadvantage Test.
Key Amendments
The Bill would make the following key amendments
to the Act.
- Australian Workplace
Agreements (AWAs) could not be made after
the commencement date.
AWAs made and lodged before the commencement
date, or made before commencement and lodged
within 14 days after that date, would continue
to operate until terminated or replaced.
- A new type of instrument would be created – the
Individual Transitional Employment Agreement
(ITEA). ITEAs could be made until 31 December
2009, between an employer that employed at
least one employee on an individual employment
agreement
such as an AWA, a pre-reform AWA, an individual
preserved State agreement or an individual
Victorian employment agreement at 1 December
2007, and
(i) an existing employee
employed under an AWA, a pre-reform AWA,
an individual preserved State
agreement or an individual Victorian employment
agreement, or
(ii) a new employee who has not previously been
employed by that employer.
- The Fairness Test would
be replaced by a No Disadvantage Test for both
ITEAs and
collective agreements. Under the No Disadvantage
test, the Workplace Authority Director would
have to be satisfied that a workplace agreement
would not reduce employees’ overall terms
and conditions of employment when compared with
a reference instrument, such as an otherwise
applicable collective agreement (if the workplace
agreement is an ITEA), an award, or if there
is no such instrument, an appropriate designated
award.
Implications for Employers
The main implications are for employers using
AWAs.
The Government has indicated that Commonwealth
public sector employers are no longer permitted
to offer AWAs to any employees.
Employers using AWAs will need to decide what
strategy to adopt moving forward at least in
respect of new employees and possibly also existing
employees on AWAs. Whilst an employer may be
able to extend an AWA this will create a position
where different industrial instruments will apply
to employees.
Employers wanting to avoid reverting back to
the use of awards, will need to consider the
implementation of collective agreements. The
proposed award modernisation process will however,
also be very significant. While it is not clear
to what extent awards will be rationalised, it
seems clear that the process will include making
federal awards to replace Notional Agreements
Preserving State Awards.
Bill Passage
There is a real question whether the Bill will
be passed before 1 July 2008. The Coalition has
flagged blocking the abolition of AWAs in the
Senate on the basis that they pre-dated Work
Choices.
The Bill is however, is only
one step in the Government’s changes to the workplace relations
system with consultation over the main changes
beginning later in the year, with a view to the
new Government’s workplace relations system
fully commencing by 1 January 2010.
We shall continue to keep you informed of workplace
relations changes and those proposed changes
as they take place over the coming year.
A complete copy of the Bill can be accessed
by clicking on the following link: Workplace
Relations Amendment (Transition to Forward with
Fairness) Bill 2008.
To
further discuss or find out more about the
Transition to Forward with Fairness Bill, please
contact
Andrew Bland at abland@blandslaw.com.au
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