AWAs

Amendments to the Workplace Relations Act commenced on 28 March 2008 and apply to federal system employers. State system employers are not affected. The legislation abolishes the making of new Australian Workplace Agreements (AWAs), however existing AWAs have not been abolished. This commentary discusses how AWAs operate under the transitional legislation.

Australian Workplace Agreements (AWAs) were a main feature of the WorkChoices legislation which governed federal Australian industrial relations between 1996 and the end of 2009.
 
The making of new Australian Workplace Agreements (AWAs) was abolished on 28 March 2008, however existing AWAs were not abolished.
 
As AWAs can have a nominal expiry date of up to five years from the date of lodgement, existing AWAs can continue to apply into the future. An AWA made in 2009 with the maximum life — 5 years — would have an expiry date in 2014. In addition, the parties to an AWA should bear in mind that there is no scope in which the parties can vary an AWA, except in very limited circumstances, eg removing prohibited content or discriminatory provisions.
 
There is no ‘sunset’ date for an existing collective or individual registered agreement. However, both types of agreements have expiry dates. Once expired either party can take steps to terminate the agreeement — see below.
 
A pre-Fair Work Act agreement continues to remain in force unless terminated or replaced in the appropriate manner.
 
Note: the minimum wages and conditions of employment that commenced with the introduction of modern awards and the NES (1 January 2010) override the conditions of an existing agreement that are inconsistent with the Fair Work Act and the minimum wages of modern awards.

Termination

The rules relating to the termination of an AWA continue to apply.

This means an AWA can be terminated by agreement before the nominal expiry date or unilateral termination on 90 days notice after the nominal expiry date.

Where an AWA is terminated, the employee’s conditions will be covered by the applicable modern award.
 
Sample documentation
 
For an extensive library of policies, agreements, forms, correspondence and checklists, designed to make human resources (HR) management easy for your business see our HR Advance website.

 

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