Key Changes to Workplace Laws

Workplace Agreements

The new legislation removes Australian Workplace Agreements (AWA's) from all Workplaces in Australia.  This means that AWA's can no longer be entered into as of the commencement date of the Fair Work Act 2009. Any AWA's which were made and lodged before the commencement date, or made before commencement and lodged within 14 days after that date, would continue to operate until terminated or replaced.

Individual Transitional Employment Agreement (ITEA)

In the place of Australian Workplace Agreements (AWA's), a new type of agreement will be created, the Individual Transitional Employment Agreement (ITEA). ITEA's can be created until 31 December 2009, during the transitional period whilst award modernisation takes place.

ITEA's can be made until 31 December 2009  between an employer that employed at least one employee on an individual employment agreement ,such as an AWA, a pre-reform AWA, an individual preserved State agreement, or an individual Victorian employment agreement at 1 December 2007, and

• An existing employee employed under an AWA, a pre-reform AWA, an individual preserved State agreement or an individual Victorian employment agreement, or
• A new employee who has not previously been employed by that employer.

Read more about Enterprise Agreements

Award Modernisation - National Employment Standards (NES)

The ten National Employment Standards came into effect on 1 January 2010. Essentially, the Standards outline the new minimum requirements for employment contracts across the country.

Broadly, the ten National Employment Standards are:

• hours of work;
• flexible work for parents;
• parental leave;
• annual leave;
• personal, carers and compassionate leave;
• community service leave;
• public holidays;
• long service leave;
• notice of termination and redundancy; and
• information in the workplace.

Read more about the National Employment Standards

The lawyers at The Quinn Group are able to review your existing employment contracts and advise you of what, if any, changes need to be made in order to meet your current obligations.

Find out more about our employment contract reviews or call us on 1300 QUINNS (1300 784 667) to make an appointment.

Award Modernisation

Modern awards, together with the National Employment Standards (NES), form a new safety net of employment terms and conditions, and both will commence on 1 January 2010. The Fair Work Act 2009 introduces a new Part 10A dealing with award modernisation. This part sets out the award modernisation function of the Australian Industrial Relations Commission (the Commission) and specifies the objectives of award modernisation and requirements for modern awards. The Fair Work Act also repeals award rationalisation and simplification. This is done through a new award modernisation process.

Modernised awards contain ten matters and provide industry relevant detail about a new safety net of the ten National Employment Standards (NES), which are listed above.

However those employees earning above $100,000, indexed per annum, are free to agree to their own pay and conditions without reference to the award. This means that they may enter a written guarantee that results in a modern award not applying.  

Among other matters, award modernisation does:

• Specify the award modernisation process to be carried out and the timing for completion of that process;
• Specify matters that can be included in awards and directs the Commission as to the types of terms that must be included in awards; and requires the Commission to prepare progress reports and make them available.

Modern Awards:

• Must be simple to understand and easy to apply, and must reduce the regulatory burden on business;

• Together with any legislated employment standards, must provide a fair minimum safety net of enforceable terms and conditions of employment for employees;

• Must be economically sustainable and promote flexible modern work practices, and the efficient and productive performance of work;

• Must be in a form that is appropriate for a fair and productive workplace relations system, that promotes collective enterprise bargaining but does not provide for statutory individual employment agreements;

• Must result in a certain, stable and sustainable modern award system for Australia.

Reviewing Modern Awards

The Fair Work Act requires Fair Work Australia to undertake four-yearly reviews of modern awards, to ensure that they maintain a relevant and fair minimum safety net and continue to be relevant to the needs and expectations of the community. The Fair Work Act allows modifications to modern awards between the four-yearly reviews in limited circumstances, such as to deal with important new circumstances that are affecting a particular award or changes in the work value of classifications.

Read more about the Terms of Modern Awards

Replacement of the "Fairness Test" with the "No Disadvantage Test"

The "Fairness Test" will be replaced by a "No-Disadvantage test" for both ITEA's and collective agreements. Under the No-Disadvantage test, the Workplace Authority Director would have to be satisfied that a workplace agreement would not reduce employees' overall terms and conditions of employment, when compared with collective agreement such as an award, or if there is no such instrument, an appropriate designated award.

When does an agreement pass the no-disadvantage test?

An agreement would pass the No-Disadvantage test if the Workplace Authority Director is satisfied that an ITEA would not result, on balance, in a reduction in the employee's overall terms and conditions of employment under any reference instrument relating to the employee. 

What happens if the workplace agreement ceases to operate because it does not pass the no-disadvantage test?

If the workplace agreement does not pass the no-disadvantage test then both the employer and employee will be bound by the industrial instrument(s) that would have applied if the agreement had not come into operation. If no such thing exists the appropriate award will apply.

If your concerned how the transition to the new Fair Work system will affect you, please call us on 1300 QUINNS (1300 784 667) or +61 2 9223 9166 or complete and submit the Express Enquiry form on the top right hand side of this page and we will contact you to discuss your enquiry.