McArdle Legal
Our Expertise And Experience Our Team Need Help News
Contact Us
Return to home

News
Back to news
April 2008
Implementing Labor's 'Forward with Fairness' Policy
On Wednesday 13 February 2008, the new Rudd Government began the first steps of its promised overhaul of the Howard Government's WorkChoices industrial relations system. Workplace Relations Minister Julia Gillard, introduced the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 (the Transition Bill), which plans to have Labor's new industrial relations system (Forward with Fairness), in place by 2010. On Wednesday 19 March, Labor's transition bill for Industrial Relations passed through parliament. It is now referred to as the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008.
What does this mean?
The legislation facilitates Labor's implementation of "Forward with Fairness" by:
There are certain minimum standards enforced by this test such as:
  • Banning new Australian Workplace Agreements (AWAs);
  • Establishing Individual Transitional Employment Agreements (ITEAs);
  • Introducing a new no disadvantage test for both collective agreements and ITEAs to replace the WorkChoices "fairness test"
  • Enabling the Australian Industrial Relations Commission (AIRC) to begin the award modernization process; and
  • Removing the Employer Fact Sheet requirements implemented by WorkChoices.
These changes during the transition phase of the policy will allow the Government to:
AWAs - After the legislation is proclaimed, the making of new AWAs will be banned. AWAs with terms of up to five years made before the commencement date of the Government's legislation and lodged within fourteen days, may operate until terminated or replaced. Additionally, the Australian Public Service will no longer offer AWAs. Parties to pre WorkChoices agreements will be able to extend their agreements for up to three years.
ITEAs - ITEAs will only be available to employers who on 1 December 2007 employed a worker under an individual deal, including an AWA, a pre reform AWA, an individual preserved state agreement, or an individual Victorian employment agreement. ITEAs will cease to operate on 31 December 2009.
Employers will be able to offer ITEAs on a take it or leave it basis, even if there was a collective agreement operating at their workplace in addition to AWAs. These agreements will be prohibited from disadvantaging employees compared to an applicable collective agreement and the current AFPCs or in the absence of an agreement, the current AFPCs and the relevant award. The legislation was passed with amendments, extending ITEAs to former employees
No disadvantage test - This test replaces the fairness test passed in 2007, and applies to both collective agreements and ITEAs. The Workplace Authority Director will conduct the test and will be required to ensure that a workers overall terms and conditions are not reduced in comparison with a 'reference instrument' such as a collective agreement or an Award (if there is no award, the Workplace Authority Director can designate an award). Collective union, non union agreements and ITEAs for existing employees will be subject to the no disadvantage test.
The minister has confirmed that the WorkChoices exceptional circumstances test would be retained for agreements that have failed the no disadvantage test. However, agreements that were approved under those provisions, would be limited to a two year term. The Workplace Authority Director would have to publish their reasons (which would not be subject to judicial review), for passing those agreements. The legislation was passed with amendments providing that long service entitlements under state laws can be considered when agreements undergo the no disadvantage test.
There is no difference to be seen between this new test and the Fairness Test which came in, in May 2007.
NAPSA's
The legislation includes Notional Agreements Preserving a State Award (NAPSA's). There have been concerns raised by both employers and employees in regards to the Work Choices deadline of March 26, 2009. This has been altered to December 31 2009, to take the old state awards to the end of the Government's transitional arrangements. Other WorkChoices arrangements that the Act extends until the same date, include superannuation, which would otherwise become a non allowable award matter, and arrangements for transitionally registered associations. The passing of the legislation included amendments allowing the extension and variation of NAPSA's
Other
The legislation also removes the 90 day rule for unilateral termination of expired deals. This means that a party wanting to end an expired agreement will have to apply to the AIRC and meet a public interest test (as was the case prior to WorkChoices). If this is successful, employees are then subject to whatever award or workplace agreement would have applied to them, but for the terminated agreement. The rule will continue to apply for AWA or ITEAs which have passed their nominal expiry date, however, employees will then fall back on the relevant agreement or, if none exists, the full award.
Another change is that certified agreements made prior to WorkChoices, can under the legislation, be extended or varied for a maximum of three years on application to the AIRC. This is to prevent parties falling between WorkChoices and the new legislation. The AIRC may only grant the extension/variation if parties genuinely agree. It can not do so if industrial action is threatened or organized by either party from the day after the bill was introduced to parliament. There is a prohibition on parties using any other action to force the extension/variation.
Award modernisation
Award modernisation will be conducted as a part of the new industrial relations system. This process and all that it entails are more substantially discussed in the 10 National Employment Minimum Standards article.
Other significant provisions of the bill will be to:
  • Remove the restriction on referencing other industrial instruments in agreements;
  • Require that workplace agreements be lodged with signatures attached although lodgement could still be done electronically via PDF's;
  • Ensure that most agreements will take effect from seven days after being advised by the Workplace Authority Director that they have passed the no disadvantage test; and
  • Require the Workplace Authority to consult more widely when designating awards for the purposes of the no disadvantage test.
In addition to this legislation, the Minister will chair meetings with the Government's Business Advisory Group and the Small Business Working Group. The Working Group will be the primary group given the task of drafting the fair dismissal code for businesses with fewer than 15 employees.
As stated above, the legislation was passed through parliament on Wednesday 19 March 2008. It will take effect as soon as it is proclaimed, which will be as soon as possible according to the Government.
Back to news
This article is intended to be general information only. It is not presented as legal advice. Since each legal circumstance is different, no action should be taken unless specific prior advice is sought on that action.
Disclaimer