banner 1 Banner 2

New Work Choices Laws

The regulations for the Work Choices legislation have recently been released by the Commonwealth government and took effect on 27 March 2006.  Other amendments to the Workplace Relations Act 1996 (Cth) also took effect on that date.

The regulations provide many details about the new Work Choices system and address matters such as secret ballots, medical certificates, prohibited content of workplace agreements, and how state laws will be affected.  The regulations also set out a comprehensive regime of record-keeping requirements for employers. The content of those records will be more extensive than was the case under state legislation that may have previously applied. This article will focus on the effect of the new regulations on state laws.

The interaction with state and territory laws will be complex in nature. In some situations, the new Work Choices regulations will override state legislative provisions. For example, the regulations will override the Contracts Review Act 1980 (NSW) in relation to claims pertaining to the employment relationship. This is in spite of the fact that doubts have been expressed over whether that statute applies to the employment relationship.

Section 7C of the Workplace Relations Act 1996 allows regulations to either expressly exclude the operation of some state and territorial industrial laws or to expressly preserve the operation of other laws.

Examples of matters in state systems which will lapse for employers and employees covered by Work Choices:

  • matters about an award, including the making or variation of an award;
  • matters about an agreement (such as certification and variation);
  • matters about wages;
  • matters involving general dispute resolution; and
  • matters about industrial action.

As noted, s 7C of the Act also allows the regulations to expressly preserve the operation of some state laws. Many of these provisions can be characterised as interim or transitional in nature.

For instance, these matters include things such as:

  • unfair contract provisions (eg. brought under s 106 of the Industrial Relations Act, 1996 (NSW)) where the application was underway on 27 March;
  • enforcement and compliance provisions relating to the enforcement of rights or obligations which existed under a state or territory industrial law before 27 March;
  • state transmission of business provisions where the transmission of the business occurred prior to 27 March; and
  • state provisions regarding termination of employment (eg. unfair dismissal provisions), but only in relation to a termination of employment that occurred prior to 27 March.

Similarly, the Workplace Relations Regulation 2006 also preserves, for a six month period, appeal rights under state laws that relate to decisions varying awards. This makes it possible to appeal a state award decision that has already been made to the full bench of the relevant commission. It also ensures that the appeal to the relevant Commission can be incorporated into a pre-reform wage guarantee and preserved award entitlements under Work Choices (ie. an entitlement that may apply unless expressly excluded or modified by a workplace agreement).


Training Arrangements

The effects of the Work Choices regulations on some matters may be more complicated.  In some situations, this is because s 7D of the Workplace Relations Act 1996 provides that an award or workplace agreement prevails over a law of a state or territory or a state industrial instrument, to the extent there is an inconsistency.  The regulations exempt certain selected state or territory laws dealing with “training arrangements” from the operation of section 7D.

Federal awards and agreements may now override state or territory laws dealing with training arrangements to the extent set out in the regulations. The practical consequence of this is that the terms and conditions of employment of trainees may alter over time, subject to any minimum conditions as set out in the Australian Pay and Classification Standards.


Occupational Health and Safety

Work Choices will also have a significant effect on occupational, health and safety laws. Work Choices imposes additional conditions on entering premises pursuant to state or territory occupational health and safety legislation. Some unions regularly utilise such provisions in order to enter an employer's premises (eg. in the construction industry).