Forward to Fairness

April 2008

Forward to Fairness Policy Became Law

Following promises made during the recent Federal election campaign, the Rudd government has brought into effect a law which will modify some of the worst aspects of the Howard government's Work Choices legislation.  The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 commenced operation on 28 March 2008.  Its main features are the following:

Elimination of AWAs

Employers are no longer entitled to enter into AWAs with their staff.  Those employers who at 1 December 2007 had already employed at least one employee on an AWA or similar state individual agreement will be entitled to offer some workers an Individual Transition Employment Agreement (ITEA).  ITEAs may not have a term later than 31 December 2009.

Unlike the original Work Choices AWAs, the ITEAs will be subject to the "no disadvantage test", so the agreements may not be used to undermine existing collectively bargained terms and conditions.  ITEAs will not take effect until the Workplace Authority has determined that they meet the test, unlike the old Work Choices AWAs, which took effect as soon as they were lodged.

No Disadvantage Test for Collective Agreement

Another of the initial pillars of Work Choices has also been dismantled with the requirement that collective agreements meet the no-disadvantage test.  Collective agreements will be measured against existing awards and state laws which provide for employment conditions, and will not be approved if they result in an overall reduction of terms and conditions of employment set out therein.

Termination of Workplace Agreements

Under Work Choices, collective agreements could be unilaterally terminated by the employer by giving notice.  Under the amendments to the legislation, collective agreements which do not include a provision about termination may only be terminated on application to the Australian Industrial Relations Commission.  The Commission will apply a public interest test in determining the application.

Another feature of the new law is that employees covered by AWAs and ITEAs will now fall back to any existing agreement or award on termination of their current agreement.  Under Work Choices, those employees fell back to the minimum Australian Fair Pay and Conditions Standard on termination of their AWA, diminishing their individual bargaining position, and undermining the role of collective agreements.

Award Modernisation

The Australian Industrial Relations Commission has a new role under the legislation to modernise existing awards, and to minimise the number of existing awards, most likely by consolidating multiple awards into single instruments.  In fulfilling its task, the Commission is to have regard to principles such as skills development, the need for workforce participation, making workplaces family friendly and developing a fair labour market.