Fair Work transitional provisions

07 April 2009 Topics: Workplace relations and safety

On 19 March 2009 the Government introduced the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 (Bill) to the House of Representatives.

The purpose of this Bill is to provide the transitional arrangements that are required as a result of the amendments outlined in the Fair Work Act.  It is this Act which provides the terms for the new industrial relations system which will operate in Australia from 1 July 2009.

The transitional provisions address how current industrial instruments and other arrangements will be treated under the new system.

The Bill also:

  • repeals the remainder of the Workplace Relations Act, renaming it the Fair Work (Registered Organisations) Act 2009;
  • makes transitional provisions to move employers, employees and organisations from the old Workplace Relations Act system to the new system; and
  • makes consequential amendments to other Commonwealth legislation that are essential for the operation of the Fair Work Bill.

A second Bill will be released by the Government in the future.  This second Bill will deal with consequential effects that the Fair Work Act will have on other Commonwealth and State legislation.   In total these two editions of transitional amendments along with the Fair Work Act will comprise over 1000 pages of new legislation in Industrial Relations.

When do the transitional provisions begin to operate?

Like the Fair Work Act the transitional provisions will come into effect on a number of dates. The majority of the amendments are anticipated to begin their operation on 1 July 2009.  Others will begin at the same time the National Employment Standards (NES) and Modern Awards are implemented on 1 January 2010.

The Bill updates the status of government authorities that currently regulate industrial relations.  The Workplace Authority will continue to operate until 31 January 2010 allowing it to continue assessing collective agreements and enterprise bargaining agreements against the terms of the no-disadvantage test (which will be replaced by the better of overall test on 1 January 2010). Furthermore, the Australian Fair Pay Commission will operate until 31 July 2009 to allow it to complete the final wage review and the Australian Industrial Relations Commission will cease to exist on 31 December 2009, allowing it to complete the award modernisation process.

Transition of Instruments

The main impact of this Bill on the majority of existing employment arrangements is in its outline of the interaction rule between existing industrial relations instruments with the new instruments introduced by the Act.  These include Notional Agreements Preserving State Awards (NAPSA’s), Collective Agreements and Individual Transitional Employment Agreements (ITEA’s).

As a general rule these instruments will continue to operate under the terms of the Workplace Relations Act.  However, as of the 1 January 2010 these remaining instruments (some NAPSA’s will expire on the 31 December 2009) will need to be assessed against the terms of the NES and the minimum safety net wages to ensure that they meet these standards.

As a result any Collective Agreement or ITEA made before 1 July 2009 may need to be varied to comply with the higher standards provided by these terms. If they do not, then the terms of the NES or minimum safety net wages will be imported into the Agreement.

We will provide further details in relation to these and other areas outlined in the Bill in due course.



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