Workplace Relations Amendment (Transition to Forward With Fairness) 2008 Bill

Executive, March 31

Report adopted

Then Government's Workplace Relations Amendment (Transition to Forward with Fairness) 2008 Bill has been passed by the parliament and received Royal assent on the 20th March 2008 and should be law by the 28th of March. The Bill represents the first stage in the implementation of the Labor Government's program of reform of the system of industrial relations in order to repeal Work Choices. The legislation:

• Prevents the making of new AWAs, but allows existing AWAs to remain operative for their duration;
• Establishes transitional individual instruments - Individual Transitional Employment Agreements (ITEAs) will only be available in limited circumstances where the employer has an AWA or other recognised statutory individual instrument in place;
• Sets out a new "no disadvantage test" for all agreements. The Bill repeals the notion of "protected award matters". Instead all agreements will be assessed by the Workplace Authority against the entire award. Agreements made during this period must also comply with the current Fair Pay and Conditions Standard;
• Resurrects a decent fallback for employees where their agreement is terminated. If an AWA or ITEA is terminated an employee can be covered by a collective agreement at the workplace or, alternatively the relevant award. Where a collective agreement is terminated the employees are entitled to the award.
• Extends the term of NAPSAs and Transitionally Registered Associations until 31/12/09;
• Extends the life of superannuation clauses in awards;
• Repeals the right to unilaterally terminate a collective agreement. The AIRC may terminate a collective agreement if it is not contrary to the public interest, and must have regard to the effect on the parties at the workplace;
• Enables some parties to retain existing arrangements during the transition period, by allowing for an extension and variation, by consent, of pre reform certified agreements;
• Repeals the prohibition in s.355 on collective agreements calling up other documents;
• Enables award modernisation, that will commence in early 2008, and be finalised by December 2009. The Explanatory Memorandum includes, as an appendix, the directions given to the AIRC to modernise awards;
• Details the matters that may be included in modern awards;
• Constrains the functions of the Fair Pay Commission; to adjusting the federal minimum wage and the existing Australian pay and classifications scales.
• Foreshadows the release of an exposure draft of the 10 National Employment Standards. (which has now been released)

• Allowing employers to offer ITEAs to employees with whom they have had a prior relationship (with safeguards to avoid abuse);
• Ensuring that employees' long service leave entitlements (under State laws) are considered in the no-disadvantage test;
• Ensuring that awards can cover contractors that hire outworkers in the textile, clothing and footwear industry;
• Specifying that more favourable outworker conditions in awards prevail over workplace agreements; and
• Allowing the AIRC to extend the life of preserved collective State agreements.

• The scope of the federal laws and architecture of the Act;
• Genuine freedom of association and rights to be represented, promotion of collective bargaining, information and consultation at the workplace, equal pay, and non discrimination;
• Good faith bargaining, including industrial action;
• Unfair dismissal;
• The establishment of Fair Work Australia;
• The ongoing maintenance of the safety net; and
• Enforcement and compliance.