New IR laws and workplace agreements.
At the time most of the attention was on the abolition of Australian Workplace Agreements (AWAs), a move applauded by the vast majority of the community. However the amendment also put in place other important changes to the federal workplace relations system, particularly in relation to the approval and operation of new workplace agreements.
New no-disadvantage test
A new no-disadvantage test applies to all workplace agreements made from 28 March 2008. This replaces the previously misnamed "fairness test" that applied to agreements lodged from 7 May 2007.
The new no-disadvantage test (NDT) involves an assessment of whether a workplace agreement results, on balance, in a reduction of an employee's overall terms and conditions of employment when compared with appropriate instruments, for example the applicable award.
The NDT is conducted by the Workplace Authority following lodgement of the agreement. The Workplace Authority may request employers to provide further information such as typical work patterns including rosters and shift arrangements to establish a proper basis for the NDT assessment. If the agreement does not pass the NDT, the parties to the agreement are notified and advised as to how the agreement may be varied to pass the NDT. Any resulting variation to a collective agreement must be approved by the employees before re-lodging with the Workplace Authority.
In addition to meeting the NDT, agreements will now not become operative unless the employer provides proof that the requirements for lodgement have been met, including the requirement for employee approval.
The operation of a collective agreement, including a union collective, employee collective and multi-business agreement, will not commence until approved.
Termination of agreements
Importantly, employers no longer have the power to unilaterally terminate a collective agreement that has passed its nominal expiry date, and return employees to a limited number of minimum standards. A collective agreement can only be terminated where the parties agree, or by the Australian Industrial Relations Commission in circumstances where termination would not be contrary to the public interest.
Further changes required
The ANF is represented on several committees that will look at further changes to be included in draft legislation to be tabled in Parliament later this year. Important issues relating to agreement making and other matters are still to be addressed in this legislation including:
* genuine freedom of association and rights to be represented; promotion of collective bargaining; rights to information and consultation at the workplace;
* good faith bargaining including industrial action;
* unfair dismissal;
* ongoing maintenance of the safety net;
* enforcement and compliance; and the
* establishment of Fair Work Australia.