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.
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.
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.