On 27 May 2009 the Federal Government introduced the Fair
Work (State Referral and Consequential and Other Amendments) Bill
2009 (second transitional Bill) to the House of
Representatives. The second transitional Bill has been drafted to
support the implementation of the Federal Government's new
industrial relations system.
The purpose of the second transitional Bill is to assist in the
creation of a uniform national workplace relations system for the
private sector. The second transitional Bill provides the framework
for a workplace relations system where businesses, both large and
small, are covered by one national system and one set of laws. It
aims to transition the remainder of the private sector employment
arrangements, who stayed in the State systems after Work Choices,
to the Federal system.
This transition is intended to be done through a co-operative
approach from the States who will provide "text based
referrals" of the State's industrial relations power to
the Federal system. What this means is that State legislation will
be created to specify what sectors within each State will, in the
near future, look to the Fair Work Act 2009 (Cth) for
their workplace relations laws.
Due to their hesitation to hand over the industrial relations
power in full, the States will still be able to claw back this
power in the future if amendments are made to the legislation with
which they don't agree.
Unlike the other States, Victoria has announced that it will
refer both private and public sector employment arrangements to the
Federal system. This move is not surprising considering Victoria
has been operating under the Federal System since 1996 when Premier
Kennett provided a full referral of powers to the Federal
New South Wales and Queensland are not so bold; their respective
Ministers have announced that they will only refer to the Federal
System the private sector employment arrangements that are not
already caught under the Federal System. This will benefit
employers in the States where there is uncertainty about which
workplace relations system applies, or who are competing with other
businesses who are clearly covered by the Federal system. It is
anticipated that on 1 July 2009, Victoria will continue to operate
in the Federal system.
Western Australia is taking a different approach, announcing
that it will not be referring any of its IR powers, instead
conducting an independent review into its own industrial relations
system. This review will consider opportunities for harmonisation
with the Federal IR laws, but only to the extent that the
harmonisation would be appropriate to the State's unique
industrial relations system.
In addition to the amendments itemised above, further amendments
have been put before Parliament in relation to the first of the
transitional provisions which were released in late April 2009
which deal with the operation of old agreement under the Fair
Work Act 2009. Of particular interest are the amendments
relating to the demarcation provisions for unions and the potential
phasing in of Modern Award terms.
Once this legislation has been finalised we will provide a
detailed briefing on what employers will need to do in order to be
prepared to move to the new system on 1 July 2009.
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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