Australia: "Federal Government Introduces "Fair Work Bill 2008""

Last Updated: 4 December 2008
Article by Peter Punch

On 25 November 2008 the Deputy Prime Minister Julia Gillard introduced into the Federal Parliament the Federal Government's "Fair Work Bill 2008", which is the Government's main legislative vehicle for replacing what is left of the Howard Government's "WorkChoices" legislation.

The 575 page Bill will obviously require some time for all interested parties to fully digest. But our preliminary examination of the Bill leads us to make the following observations (some firm, some necessarily tentative).

The Bill mainly follows "Forward with Fairness" ALP Policy

The Bill appears in most respects to be consistent with the "Forward with Fairness" Policy ("FWF") the then Labor Party Opposition announced in August 2007 prior to the Federal Election in November that year. Nevertheless, a careful scrutiny of the Bill will reveal some matters of detail that were not embraced within FWF, or actually are not in conformity with it. No doubt these matters will come under examination in the Senate Enquiry that will commence in early 2009.

The Bill does not cover transitional matters

While the Bill is very substantial in size, it is not difficult to follow, is written in relatively clear "plain English", and is immensely less complex than its "WorkChoices" predecessor. However, it does not deal with transitional matters, which we believe will be addressed in a separate Bill. The transitional arrangements will no doubt give rise to complexity and debate, and perhaps for that reason the Government has sought to produce a "clean" Bill for the new system, to keep the focus on that new system (not what might be endless debate on transitional matters). Also of course the Bill does not deal with registration and accountability of registered organisations – the provisions relating to them at this stage remain untouched in Schedule 1 to the current Act. That is an area of the law that seems at this stage unlikely to change to any significant extent.

A period of IR peace to break out?

Recently Professor Ron McCallum (Australia's leading industrial law academic and internationally renowned in employment law scholarship) expressed the view (perhaps it was more of a hope) that with the passage of the Bill through the Parliament

"We would have finished this period of chop and change industrial relations which began with the Industrial Relations Act 1989 and will end – hopefully with the Forward with Fairness Act of 2009 ... this 20 years of siege warfare winner take all narcissistic politics may be over for a while and we can all get on with a true role of Labor Relations Law – which is to provide a bedrock of rules to allow employees to work fairly for a fair day's pay, for employers to receive their labour and remunerate them with adequacy, fairness and dignity".

We are sure that all practitioners and stakeholders in workplace relations in this country will be hoping that Professor McCallum proves to be right. The legislative activity in the last ten years (and most particularly the controversial and even chaotic two years of the WorkChoices regime) have made the task of advising and decision making in workplace relations a fraught and difficult process. But we believe that the signs are there that a period of relative stability and certainty may be upon us soon – that is, the Federal Opposition has indicated that it will not oppose the Bill in so far as it implements the Government's mandate (and of course the Bill is in most respects of that character) and most employer groups (while not openly supportive of the Bill) have indicated that they can either work with or cope with its provisions (with a few exceptions that will no doubt be addressed during the coming Senate Enquiry).

The Bill covers "National System employers"

The Bill's fundamental basis of coverage is "National System Employers", which is an expression defined by reference to the scope of the Commonwealth Parliament's constitutional authority. In essence the Bill has the same coverage as the existing "WorkChoices" regime - that is, (in substance) Commonwealth Government employees, employees in the Territories, and (most importantly) employees of the overwhelming majority of corporations, leaving State Government employees, sole traders/partnerships and some employees of "non trading" corporations still within the State jurisdictions (except probably in Victoria). This is an approach which is more limited than that foreshadowed by FWF, which proposed that there be a national system of workplace relations for all private sector employers and their employees.

Clearly the Government has decided to proceed with the Bill on the basis of the existing Federal constitutional authority, leaving for later (perhaps 2009 or 2010) the question of whether those residual categories of employees still within the State systems will ultimately come into the national system through agreement with the States. To a considerable extent the question of agreement with the States for a truly national system remains a "work in progress" and early resolution of the issues there seems unlikely.

And of course, there still remains the lingering uncertainties about whether "not for profit" corporations (such as incorporated religious schools and welfare agencies) are IN or OUT of the national system.

Limited return of compulsory arbitration

An important element of the Bill is "Workplace Determinations", to be found in Chapter 2 Part 2-5. This does appear to go beyond the Government's mandate but a consideration of the terms of the Bill make it clear that workplace determinations by Fair Work Australia (i.e. compulsory arbitration of unresolved industrial disputes) will not be routine. We believe that the inclusion of such a "last resort arbitration" mechanism will assist parties in dispute to either reach agreement more quickly or at least reach agreement when agreement may not otherwise be possible - and that may be the enduring value of such a mechanism being in place.

Return of unfair rights to most of the workforce

The new unfair dismissal regime is much as was expected from FWF but the provisions for quick and efficient resolution of unfair dismissal claims, while certainly there in the Bill, nevertheless leaves Fair Work Australia with a considerable amount of room to decide, in appropriate cases, to conduct matters in accordance with what might be regarded as the "traditional" hearing process (with legal or paid agent representation) and public hearings etc. It would seem however that the mechanisms for dealing with unfair dismissal matters given to Fair Work Australia will give it an opportunity to quickly deal with matters lacking in substance somewhat more efficiently than the "pre WorkChoices" regime allowed. Only through experience of this new system in operation can we make a proper assessment as to whether the problems with the old pre-WorkChoices unfair dismissal system (with its unfortunate characteristic of lengthy proceedings and the payment of "go away" money by employers) will re-emerge. But bearing in mind that the Bill does restore some measure of unfair dismissal rights to about 50% of the workforce deprived of any rights in that regard by WorkChoices, it is difficult to argue with the fundamental justice of the reforms. No doubt there will be a great deal of attention given by employer groups to assessing the performance of Fair Work Australia's members in ensuring that the deficiencies of the pre-WorkChoices system do not become significantly evident again.

Flexibility clauses in awards and agreements

The Bill provides for "flexibility clauses" to be required in modern awards and enterprise agreements, and that accords with FWF. But we are sure that the unions will be disappointed that there will be no outside scrutiny of such agreement prior to them taking effect (as was the position prior to WorkChoices). Nevertheless any such agreements are required to be "genuine" and to leave the employee better off.

Disappointment for the union movement?

The unions will also be disappointed in other aspects of the Bill - for example, unfair contract remedies in NSW and Queensland remain suppressed in respect of national system employers, and all "high income employees" (those on earnings over $100,000 indexed from August 2007) are excluded from modern awards. Nevertheless on the other hand unions will have wider right of entry rights and important rights in relation to collective bargaining generally, bargaining in good faith and enterprise agreements.

Transmission of business – big change proposed

FWF did not deal with "transmission of business" matters at all. The Bill however does propose significant changes to the existing law, in particular by eradicating the concept of "transmission of business" as developed by the High Court in the cases of PP Consultants and Gribbles Radiology and instead substituting a focus on a transfer of employee's work (ie a test more aligned with the Full Federal Court decision in the North West Health Care case). Moreover, outsourcing is itself to be recognised in this respect. We are sure that this matter will attract attention in the Senate – it was not a matter addressed in FWF so the "mandate" issue does not arise; the proposals will have to be thrashed out on their merits.

More information to come...

It remains to be seen what will happen to the Bill in the Senate Enquiry process – much will survive, but in certain areas (some mentioned above) there may be the need for compromise by the Government.

Carroll and O'Dea's Employment and Industrial Relations Group will be monitoring developments with the Bill and will provide update client bulletins when needed. We will also be conducting client briefings at our various offices in the New Year, once we have clarity about the contents of the legislation.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.