On Tuesday 18 March 2008, the Senate passed the
Workplace Relations Amendment (Transition to Forward with
Fairness) Bill (Transition Bill), with
some amendments that were proposed by the Government. The
amended Transition Bill has also been passed by the House of
Representatives, and is awaiting Royal Assent before it comes
It is likely that the Transition Bill will receive Royal
Assent in the next week or two (perhaps the next day or two).
From the date of commencement of the Bill, new Australian
Workplace Agreements (AWAs) will not be able
to be made and the Australian Industrial Relations Commission
(AIRC) will begin the 'award
There are other important changes that will be made by the
Transition Bill, once it becomes law, including the
introduction of the new No Disadvantage Test (to replace the
Fairness Test) and a capacity for the parties to agree to vary
and extend pre-reform certified agreements, subject to certain
conditions and the approval of the AIRC. We discussed those
changes in our HR&IR Update dated 14 February 2008.
Implications for Employers
From the commencement of the Transition Bill, new AWAs
will not be able to be made (although a 14 day grace period
applies for lodging AWAs that were made before the Transition
Bill commences). Employers who have been using AWAs will need
to decide whether to move to ITEAs, collective agreements or
common law contracts.
Employers currently bound by a pre-reform certified
agreement or preserved State agreement should give serious
consideration to making an agreement to vary and extend the
existing agreement, rather than making a new agreement. Many
unions may prefer to roll-over an existing agreement, to
avoid the need to re-draft the entire agreement in order to
comply with the prohibited content rules and other
requirements that have been introduced since WorkChoices
commenced. There are some advantages for employers because
unions cannot take industrial action if they want to utilise
The award modernisation task will now begin in earnest.
The timelines will be tight (awards to be modernised by 1
January 2010), and the AIRC will have a significant challenge
as it seeks to standardise minimum terms and conditions
across various employers and types of employees. Employers
would be well-advised to keep a keen eye on how their awards,
and their industry, will be affected by award
Changes to the 'prohibited content' rules may be
imminent. Employers should 'watch this space'for
In addition to the changes discussed in our earlier
HR&IR Update, the Senate and the House passed a number of
amendments to the Transition Bill. In summary, these latest
amendments will (once the Transition Bill becomes law):
enable the Workplace Authority to take into account State
and Territory long service leave laws when applying the no
enable 'eligible employers' (those who had an
employee covered by an AWA (or similar agreement on 1
December 2007) to make Individual Transitional Employment
Agreements (ITEAs) with former employees
when they rejoin the employer, subject to certain
ensure that outworker conditions in awards are
allow the parties to vary and extend preserved State
collective agreements in a similar fashion to pre-reform
certified agreements; and
make a number of amendments to clarify and correct the
meaning of the original Transition Bill.
The amendment which allows 'eligible employers' to
re-engage former employees on ITEAs is significant. It was
sought by various employers as part of the Senate Committee
process, and the employers' requests were acceded to by the
Government. However, all ITEAs will still have a nominal expiry
date of no later than 31 December 2009.
Employers in States other than Victoria may also be
interested in the new provision which will allow the AIRC to
vary and extend preserved State agreements. This amendment is
similar to a provision in the original Transition Bill,
discussed in our HR&IR Update dated 14 February 2008,
relating to pre-reform certified agreements.
It will allow employers, employees and unions to roll-over
existing pre-WorkChoices agreements for a period of up to three
years, until after the new workplace relations system is
implemented on 1 January 2010.
The Transition Bill, as amended, will probably commence in
the next week or two.
It is likely that, at the same time, the Government will
issue regulations that amend the Workplace Relations
Regulations 2006. The new regulations could also substantially
vary the rules regarding what 'prohibited content' must
be excluded from workplace agreements. Whether the Government
uses this opportunity to change the 'prohibited
content' rules remains to be seen.
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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