Transition to Fair Work – the key provisions

Author: Holding Redlich Insights – Employment & Industrial Relations August 2009 www.holdingredlich.com.au

The Fair Work Act 2009 (Cth) (FW Act) commenced on 1 July 2009. For your ease of reference some of the key transitional provisions are summarised in this bulletin.

  • On 1 July 2009 the FW Act replaced the Workplace Relations Act (WR Act).
  • However, in many situations the old WR Act provisions will continue to apply. For example, unfair dismissal provisions in the WR Act continue to apply in relation to a dismissal that occurred before 1 July 2009.
  • The Australian Fair Pay and Conditions Standard will cease to apply after 31 December 2009. The National Employment Standards (NES) will commence on 1 January
    2010.
  • If an employee starts or applies for parental leave, annual leave or personal/carer’s leave under the WR Act rules before 1 January 2010, the NES rules will apply to that entitlement on and after that date.
  • Service prior to 1 January 2010 counts for all service-based NES entitlements unless the employee has already received the benefit of that entitlement.

    An exception is in the case of the NES redundancy pay entitlement. In that case if an employee’s terms and conditions of employment (whether common law or statutory) do not provide for redundancy pay entitlements, service before 1 January 2010 is not counted.

  • Employers need only issue the Fair Work Statement to new employees who start employment after 1 January 2010.
  • After 1 July 2009, federal awards and notional agreements preserving State awards (NAPSAs) will not apply to employees with a guarantee of annual earnings above the high income threshold ($100,000 p.a. indexed from August 2007).
  • Prohibited content rules under the WR Act will continue to apply to Work Choices collective agreements, AWAs and Individual Transitional Employment Agreements (ITEAs).
  • Terms in federal awards, NAPSAs, pre Work Choices certified agreements, ITEAs and AWAs that undercut NES will have no effect on and after 1 January 2010.
  • Work Choices collective agreements made and lodged before 1 July 2009 will still be processed under the WR Act provisions.
  • ITEAs made and lodged before 31 December 2009 can still be made under the WR Act provisions.
  • Pre Work Choices certified agreements can still be varied by the Australian Industrial Relations Commission up to 31
    December 2009.
  • FW Act enterprise agreements will extinguish federal awards, NAPSAs, pre Work Choices certified agreements, Work Choices collective agreements, AWAs and ITEAs.
  • After 2009 modern awards will apply to employees who are covered, in place of federal awards and NAPSAs. NAPSAs will cease operation on 1 January 2014.
  • Modern awards will not apply to an employee covered by Work Choices collective agreement, AWAs and ITEAs.

    However, modern awards will apply to an employee covered by pre Work Choices certified agreements. If agreements are inconsistent with a modern award, the agreements will prevail to the extent of any inconsistency. The base rate of pay in the agreements must not be less than the relevant modern award rate.

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