New Workplace Relations Regulations released

Forward with Fairness reform legislation

The first stage of the Federal Government’s Forward with Fairness reform legislation is now in operation, with the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) (Transition Act) taking effect on Friday 28 March 2008.

The Workplace Relations Amendment Regulations 2008 (No 1) and Workplace Relations Amendment Regulations 2008 (No 2) (Regulations) make changes to the Workplace Relations Regulations 2006 consequential to the amendments made to the Workplace Relations Act 1996 (Cth) (WR Act) by the Transition Act.

The Transition Act amended the WR Act to:

• prevent the making of new AWAs
• create a new transitional workplace agreement called an ITEA for limited use during the transition period (up to 31 December 2009)
• replace the Fairness Test with a new NDT
• remove the requirement for employers to provide a Workplace Relations Fact Sheet to new employees
• enable the Australian Industrial Relations Commission to begin the process of award modernisation, and
• confine the functions of the Australian Fair Pay Commission to those necessary to ensure the maintenance of minimum wages.

Full details of the Transition Act are available in our client newsletters of 13 February 2008 and 20 March 2008.

Process for lodgement of ITEAs

The process for lodging an ITEA remains substantially the same as for an AWA.

However, the key points to note are that:

• The Information Statement that is required to be distributed to employees is different. It has been updated by the Workplace Authority to reflect the Transition Act.
• Employers still need to provide employees with a copy of the ITEA and the Information Statement at least seven days before asking them to sign the ITEA. This seven day period can still be waived in writing.
• Both parties (employer and employee) still have the right to appoint a bargaining agent.
• Both parties must sign and date the ITEA. This signature must be witnessed.
• The Employer Declaration Form must still be lodged with the Workplace Authority within 14 days of it being signed, along with a copy of the ITEA. Part C of the declaration form, which used to deal with the Fairness Test, is now the most substantial difference. It deals instead with the NDT. The requirements are slightly different to the old Part C and should be looked at carefully when lodging the ITEA.
• The employer must give a copy of the lodged ITEA to the employee as soon as they can after it is lodged.
• Once lodged, the Workplace Authority will determine whether the ITEA passes the new NDT, which compares the ITEA against any relevant awards or collective agreements that would otherwise apply, and
• If the ITEA does not pass the NDT, the employer will be given an opportunity to vary the agreement using the appropriate declaration form.

Operation/variation of workplace agreements

The Transition Act and Regulations introduce tighter controls on the operation of, and variation to, all forms of workplace agreements. In order for the lodgement of a workplace agreement to be effective, it must meet specific requirements with respect to signatures (previously, the validity of a workplace agreement was not affected even where it had not been signed in accordance with the regulations).

Previously, the Workplace Authority had a discretion to accept undertakings where a workplace agreement failed the fairness test. Under the Transition Act, this will not be possible in relation to a workplace agreement that fails the NDT (except for employer greenfields agreements). Workplace agreements that fail the NDT must be reprocessed as a variation to a workplace agreement under the WR Act, and formally lodged with the Workplace Authority. This will require union and employee collective agreements to be submitted for new votes. The Regulations require that the parties to the varied collective agreement sign the varied document. For ITEAs, the employee must sign the varied document.

Other changes as a result of the Regulations

The Regulations also:

• remove provisions relating to the Workplace Relations Fact Sheet
• remove the requirement to publish award rationalisation requests
• update the type of instrument that applies when a preserved state agreement is terminated
• ensure that any terms in preserved state agreements or notional agreements preserving state awards about outworker conditions continue to operate despite any less favourable terms of a workplace agreement, and
• make other minor technical amendments consistent with the Transition Act.

The Regulations (specifically No 2) also limit the ability of transitionally registered associations to broaden their scope of coverage beyond the state in which they were registered immediately before becoming a transitionally registered association. This ensures that the representation rights of state associations are not expanded as a result of their entry into the federal workplace relations system and minimises the risk of representation disputes.

The Employee Relations partners can assist with guidelines and checklists for clients contemplating ITEAs to replace their usage of AWAs.

This article was prepared by Alan Colman, Special Counsel, and Karli Evans, Solicitor, Melbourne, and Jennifer Bradbury, Solicitor, Perth.

More information

For information regarding possible implications for your business, contact a member of the Employee Relations team.