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Major
Recent Developments (1) The new Government’s industrial relations
policies The ALP document
“Forward with Fairness” contains information about the key
aspects of the new Government’s industrial relations policies – this
document can be accessed at http://www.alp.org.au/media/1107/msir150.php. (2) New Legislation – The First Stage On 13 February 2008, the
Government introduced the first stage of its planned legislation to give
effect to its industrial relations policies. The Workplace Relations
Amendment (Transition to Forward with Fairness) Bill 2008 may be accessed at www.workplace.gov.au. The Government
has indicated that its intention is that the Bill will commence operation by
late March 2008. However, it should be noted that the Bill has been referred
to a Senate Committee for review and report back by 17 March 2008. The key provisions of this Bill are: AWAs No new AWAs
will be able to be made after the commencement of the legislation. Existing AWAs made prior to the commencement of the legislation
will continue in force until their nominal expiry date, unless they are
terminated earlier in accordance with the legislation. However, it will not
be possible to vary an existing AWA after the commencement of the
legislation. ITEAs Individual Transitional
Employment Agreements (ITEAs) may be made by an
employer where that employer had at least one employee under an AWA on 1
December 2007. Such an employer may make an ITEA with any new employee or
with an existing employee who is a party to an AWA or similar industrial
instrument with the employer. All ITEA’s must
pass the new no disadvantage test and must have a nominal expiry date of no
later than 31 December 2009. No disadvantage test A no disadvantage test
will replace the current fairness test. The no disadvantage test will apply
to ITEA’s and to collective agreements made
after the commencement of the legislation, and to variations of all current
and new agreements. The primary basis for applying the no disadvantage test
to an ITEA will be the terms of any applicable collective agreement and the
Australian Fair Pay and Conditions Standard. The primary basis for applying
the no disadvantage test to a collective agreement will be the terms of any
applicable award and the Australian Fair Pay and Conditions Standard. Commencement of Agreements New employer and union
collective agreements or an ITEA for an existing employee will not come into effect
until 7 days after the Workplace Authority has notified the parties that the
agreement has passed the no disadvantage test. Workplace relations fact sheet The requirements for an
employer to provide employees with a workplace relations fact sheet will
cease from the commencement of the legislation. Effect of termination of agreements New provisions to ensure
that where an AWA, ITEA or a collective agreement is terminated, the
employees will be entitled to the provisions of any applicable workplace
agreement or award. Award modernisation New provisions are
included for the award modernisation process to be undertaken by the AIRC.
There are also provisions concerning the general structure and content of
modern awards, including mandatory content and terms that must not be
included in modern awards. The modern awards are to be made in a manner that
should supplement the proposed 10 National Employment Standards. The
Government has requested the AIRC to complete the award modernisation process
by 31 December 2009. Expiry date for NAPSAs The expiry date for
Notional Agreements preserving State awards (NAPSA’s)
will be extended to 31 December 2009. (3) Proposed 10 National Employment Standards The Government has
released a discussion paper on its proposed 10 National Employment Standards
(NES). The proposed NES would
deal with the following matters:
Details of the proposed
NES are set out in the discussion paper, which can be accessed at www.workplace.gov.au. The NES are to
be finalised by 30 June 2008 and will be included in the second stage of the
Government’s legislation to give effect to its policies. The
Government’s intention is that the proposed NES will commence operation
on 1 January 2010. The NES would then apply to all employment under the
federal system at that time. The NES would operate as a federal legislative
minimum safety net. As such the NES would not be able to be excluded or modified
to the detriment of an employee by a contract of employment, award or
workplace agreement. (4) New Legislation – The Second Stage Under a second stage, the Government will
introduce a comprehensive Bill to implement the other changes that are
contained in the “Forward With Fairness” document, including the
establishment of a uniform national industrial relations system for the
private sector, the establishment of Fair Work Australia, the proposed NES
and the proposed changes to the unfair dismissal provisions. The Government
has indicated that it expects to have an exposure draft of this Bill
available later in 2008. The Government’s intention is that this second
stage of legislation will commence operation on 1 January 2010. IMPLICATIONS FOR EMPLOYERS AND EMPLOYEES It should be noted that
the first stage of the Government’s legislation is limited in its
scope. It does
not attempt to seek to implement the major new federal industrial relations
framework that was proposed in the ALP’s
industrial relations document
“Forward with Fairness”. For example, the Transition Bill
does not deal with issues such the establishment of the Fair Work Australia
that will replace the AIRC, the Workplace Authority, the Fair Pay Commission
and the Workplace Ombudsman. Nor does the Transition Bill provide for the
proposed NES or for
changes to the current unfair dismissal provisions. These
matters, and others, will be the subject of the second stage of the
Government’s proposed workplace relations legislative changes. Until legislative
amendments contained in the Workplace Relations Amendment (Transition to
Forward with Fairness) Bill 2008 are approved by the Parliament, the current
provisions of the Workplace Relations Act 1996 and Workplace Relations
Regulations will continue to apply. A summary of these current provisions is
provided in the next section of this website - Key aspects of the System). DISCLAIMER This website contains general information only about
workplace relations legislation and arrangements. The material on this
website is not legal advice. Before users take any action on
any information contained on this website, they should seek appropriate
professional advice relevant to their particular circumstances. Last Updated: February
29, 2008 |