The amendments set out in the Work Choices Act will commence operation on Monday 27 March 2006.
The accompanying regulations set out in the Workplace Relations Regulations 2006 will also commence operation on the same day.
The new regulations repeal and replace the existing regulations. Immediate consequences of the commencement of the Work Choices reforms (as they primarily affect trading and financial corporations) include:
- terminations of employment on and from 27 March 2006 will be dealt with under the new unfair dismissal regime established by the reforms introduced by the Work Choices Act
- persons employed on and from 27 March 2006 will be subject to a six month qualifying period which, in effect, means that they will not be able to bring an unfair dismissal claim if their employment ends in the first six months of their employment (or a shorter or reasonable longer period that may be agreed)
- applications for certification of enterprise bargaining agreements not lodged with the Australian Industrial Relations Commission by Friday 24 March 2006 will be covered by the new provisions
- an AWA not filed with the Employment Advocate by Friday 24 March 2006 will be covered by the new provisions
- care will need to be exercised with the content of enterprise bargaining agreements and AWAs that are currently being negotiated that will not meet the lodgement deadline of 24 March 2006 to ensure that they do not contain clauses that deal with prohibited matters set out in the new regulations. Prohibited content includes a term in an agreement that deals with the renegotiation of a workplace agreement, that confers a right or remedy in relation to a termination of employment (but it is permissible to provide a provision for managing an employee’s performance or conduct) or deals with right of entry on the part of union officials
- trading and financial corporations that prior to 27 March 2006 were not in the federal system will transfer into the federal system with the State award and/or State employment agreement binding on those employers becoming transitional instruments to be known as notional agreements preserving State awards and preserved State agreements
- employers that are not a trading or financial corporation that are currently bound by a federal award will continue to be in the federal system for a transitional period of five years unless, during that time, the employer ‘opts out’ of the federal system in the manner set out in the Work Choices Act
- the list of allowable award matters will be reduced although until such time as the award simplification and award rationalisation process is completed, awards will look the same as they presently do. Until these processes have occurred, employers will need to juggle the award clauses and provisions of the WR Act to decide what is allowable and what is not (we can, if you wish, analyse the federal award binding on your organisation and advise which provisions continue to operate on and from 27 March 2006).
We will issue a summary of the more pertinent regulations that were issued yesterday afternoon, in the next couple of days.
The validity of the reforms introduced by the Work Choices Act will be subject to the High Court challenge initiated by a number of the States and other intervening parties. The hearing in the High Court will start on 4 May 2006 and will run until 11 May 2006.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.
