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Changes to workplace laws – new law
Date : 28 Mar 2008
This change to workplace law is the first of many changes to the employment relations system.Australian Workplace agreements phased out
Australian Workplace Agreements (AWAs) may not be made or varied after 28 March 2008. Employers have until 11 April 2008 to lodge AWAs that were made before this date.
AWAs have been replaced by Individual Transitional Employment Agreements (ITEAs). These are individual agreements between an employee and an employer.
ITEA agreements are a temporary measure to prepare for changes that are being developed. All ITEAs are set to expire (end) on 1 December 2009. After this date the employee or the employer are free to apply for the agreement to be terminated (cancelled).
If the ITEA agreement is not renewed the old agreement will continue after the expiry date.
Existing AWAs
Although no new AWAs can be made, AWAs that are already registered will be recognised until they are terminated or until they expire. These agreements are not bound by the new ‘no disadvantage test’.
From April 11 2008 AWAs can only be varied if it is necessary to comply with the fairness test (if there is prohibited content) or if an order is made by the Federal Court. In other circumstances AWAs will have to be replaced by ITEAs.
Expiring AWAs and ITEAs
After AWAs and ITEAs have expired, employees will be free to join collective agreements and will also be allowed to participate in a ballot for approved industrial action.
Lodgement of agreements
Agreements are lodged with the Australian Workplace Authority.
‘No disadvantage test’ replaces ‘fairness test’
The ‘fairness test’ has been replaced by the ‘No disadvantage test’. This change is similar to the system that was in place before changes were made under ‘workchoices’. The new test applies to both ITEAs and collective agreements.
The Workplace Authority will not approve an agreement unless satisfied that the employee will not be disadvantaged. Disadvantage is measured by comparing the agreement with a relevant award or collective agreement.
The concept of ‘protected award conditions’ under the fairness test has been repealed (removed).
When ITEAs start
If an existing employee is transferred to an ITEA, the agreement will not be effective until it has been approved by the Workplace Authority.
Agreements that are made with new employees take affect form the date that they are lodged.
If an agreement fails the test, the ITEA ceases to be binding and the employee will be bound by the industry award.
Compensation may be payable to the employee.
Modernisation of awards
The Industrial Relations Commission (IRC) is responsible for modernising (updating) awards. Currently there are over 4000 different types of Federal and state award agreements. The IRC will follow the process of modernising an award after a request has been made by the Minister.
Award modernisation aims to:
- simplify agreements so that they are easier to understand
- make it easier for employers to comply with regulations
- promote workplace flexibility
- provide a fair minimum safety net of enforceable terms
- reduce the total number of awards
- transfer responsibility from state to Commonwealth
- change the kinds of matters that can be covered by an award
- allow for collective enterprise bargaining.
Fact sheets
Employers are no longer required to distribute the workplace relations fact sheet.
More information
Related publication
Related pages
Related legislation
Related websites
Workplace Authority website has information about the ‘no disadvantage test and explains how to lodge an ITEA
The Australian Government website ‘workplace’ news item, Transition to Forward with Fairness Bill 2008 passes the Australian Parliament