Background
In our
update of 28 November 2008, we provided an overview of the Fair Work Bill 2008
(FW Bill).
The FW Bill is central to the Federal Government's reform of Australia's workplace relations system; it sets out how the Government's new workplace relations system will operate.
However, missing from the FW Bill was the detail on how employers and employees will transition from the current workplace relations system to the new system.
The Government promised that further legislation, dealing with these transitional issues would be forthcoming.
A letter from the Minister
On 26 February 2009, the Minister for Employment and Workplace Relations wrote to the Chair of the Senate Committee (Senate Committee) that is responsible for reviewing workplace relations legislation (including the FW Bill), regarding the status of the transitional legislation.
The Minister's letter tells us that there will be two additional workplace related Bills introduced to Parliament.
The first Bill, which will be introduced in the week beginning 16 March 2009, will include transitional provisions, including provisions that will:
- repeal the Workplace Relations Act 1996, with the exception of Schedule 1, which deals with the registration and accountability of organisations. Schedule 1 will be retained as a separate piece of legislation;
- ensure the application of the National Employment Standards and minimum wages to all national system employees from 1 January 2010, including employees covered by industrial instruments that were made before the commencement of the new system, with capacity to 'phase in' certain entitlements;
- set out rules for:
- the treatment of existing industrial instruments in the new system - including the operation of existing agreements until terminated or replaced;
- the cessation of pre-modernised awards when replaced by modern awards;
- a process for the integration of enterprise awards and enterprise NAPSAs into the new system; and
- a process to allow employees still on individual statutory agreements to participate in and benefit from collective bargaining;
- abolish the Workplace Ombudsman and Australian Fair Pay Commission and transfer the functions of these bodies to the new body, Fair Work Australia (FWA);
- maintain, for a short time, the Australian Industrial Relations Commission (AIRC), Australian Industrial Registry and the Workplace Authority, to ensure existing matters can be finalised;
- appoint all existing AIRC members to FWA and at the same time maintain their current appointments to the AIRC for the transitional period;
- create Fair Work Divisions in the Federal Court and Federal Magistrates Court;
- enable FWA to make orders to deal with demarcation disputes; and
- give FWA the power to make orders to ensure that no employee's take home is reduced as a result of their transition onto a modern award.
The second Bill, expected to be introduced in the week commencing 23 May 2009, will deal with consequential amendments to other legislation (with up to 70 Commonwealth Acts needing to be amended), and amendments necessary following any State referrals of power to the Commonwealth.
Update on the Fair Work Bill
On 27 February 2009, the Senate Committee released its report into the FW Bill. The report consists of one majority report written by the Labor members, one minority report written by the Coalition members and one minority report written by the Australian Greens.
The majority report supports the FW Bill and contains 13 (largely technical) recommendations, including that the FW Bill be passed without delay.
The Coalition minority report acknowledges the Government's mandate to reform Australia's workplace relations system, but also sets out aspects of the FW Bill that the Coalition minority have identified as unfair and counterproductive. However, the Coalition minority report does not contain any recommendations.
The Australian Greens' minority report contains 11 recommendations, and while the Australian Greens state their view that the FW Bill is fairer than WorkChoices, it is also described as a 'missed opportunity ... to re-fashion industrial relations...' in Australia.
Implications and updates
The FW Bill as well as the transitional and consequential Bills will have important implications for all employers. We will continue to monitor the developments in this area and provide regular updates.