| Straightforward Enterprising Effective |
| l a w y e r s |
| Level 8, 388 Queen Street, Brisbane, Queensland, 4000 | Tel: 07 3248 0888 | Fax: 07 3221 0095 Privacy Statement | © 2006 Cranston McEachern Lawyers & Attorneys | Contact Webmaster |
practical legal articles
'work choices'
'work choices'
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
understanding the effect of the new work
choices regulations
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:
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:
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).
choices regulations
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.
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).
| home | contact us | feedback | people | news | links | enquiries | careers | about us | practice areas |
| home | contact us | feedback | people | news | links | enquiries | careers | about us | practice areas | newsletter |
| For straight to the point advice and service Contact us at Level 8 388 Queen Street Brisbane QLD 4000 Australia Telephone 07 3248 0888 Facsimile 07 3221 0095 |
