In our LegalTalk special edition of 25 February 2008, we reviewed the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (Bill), which constituted the first proposed step in the new Labor Government’s workplace relations reforms.
After a Senate Committee review and some minor amendments to the Bill, the Bill has become law, effective 28 March 2008.
Since our last edition, a number of changes were made, including amendments which:
- enable the Workplace Authority Director to have regard in certain circumstances to State and Territory laws about long service leave as part of the new no-disadvantage test for collective agreements and individual transitional employment agreements (ITEA)
- enable an eligible employer to make an ITEA with a former employee, provided that the employee’s employment was not terminated in order to re-engage the former employee on an ITEA
- provide for outworker conditions to continue to have effect despite any less favourable terms of a workplace agreement, and
- enable preserved State agreements to be extended and varied in limited circumstances.
As a result of the new Act having commenced:
- an employer and employee can no longer enter into an Australian Workplace Agreement (AWA)
- employers and employees may enter into ITEAs in limited circumstances but ITEAS must have a nominal expiry date of no later than 31 December 2009
- a new no-disadvantage test applies to collective agreements and ITEAs, which replaces the old fairness test
- parties to a collective agreement cannot unilaterally terminate the agreement on 90 days notice. Instead a party wishing to terminate the agreement must now apply to the Australian Industrial Relations Commission. Where an agreement is terminated, employees will be entitled to be covered by whatever award or collective agreement would have applied to them but for the terminated agreement
- notional agreements preserving a State Award will now cease to have effect on 31 December 2009 (asopposed to 27 March 2009), and
- employers no longer have to provide employees with the Workplace Relations fact sheet.
The above is not an exhaustive list of the changes implemented by the new Act.
The Federal Government is expected to release a further Bill containing its more substantial reforms later this year, which it intends to have operational by 1 January 2010. It is expected that this Bill will contain the finalised National Employment Standards.
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