State awards will stay for 12 months in FWA system: DEEWR

News

State awards will stay for 12 months in FWA system: DEEWR

Employees currently under state IR systems will stay on their state awards for 12 months after moving to the federal system, and there should be a full five-year transition to modern awards, DEEWR has proposed.

WantToReadMore

Get unlimited access to all of our content.

Employees currently under state IR systems will stay on their state awards for 12 months after moving to the federal system, and there should be a full five-year transition to modern awards, DEEWR has proposed.
 
In a submission to a Senate Committee looking at the legislation facilitating the states referral of their IR powers, DEEWR said Division 2B State awards will govern the terms and conditions of employment for the relevant employees for 12 months.
 
At the referral commencement (expected to be 1 January 2010), federal awards and agreements in the same terms as the state awards and employment agreements will be deemed to come into existence and known as Division 2B State awards and agreements.
 
DEEWR said that during the 12-month period FWA will be required to consider whether a modern award should be varied to provide appropriate transitional arrangements for incoming state employees and employers.
[Editor’s Note: The Fair Work (State Referral and Consequential and Other Amendments) Act 2009 inserted Div 2A into Pt 1-3 of the Fair Work Act with effect from 25 June 2009. Division 2A gave effect to Victoria’s workplace relations reference to the Commonwealth.
 
Schedule 1 to this Bill will insert Div 2B into Pt 1-3 of the Fair Work Act to give effect to state references of workplace relations matters to the Commonwealth after 1 July 2009 but on or before 1 January 2010. The creation of Div 2B is necessary to accommodate differences in the timing of state references.]
Framework in place
 
‘Given that the AIRC will have determined transitional arrangements for employers and employees covered by NAPSAs which are derived from State awards, there will be a framework already in place for translating Division 2B State reference employers and employees to coverage by modern awards,’ DEEWR said.
 
‘In this context, the Government provided a full five year phase in period so that employers and employees would gradually move from arrangements in old State and federal awards to a new modern award. The AIRC is using that period in full.’
 
‘The Government envisages that Fair Work Australia will apply these transitional arrangements to the transition of Division 2B referral State award-covered employees to modern award coverage.’
 
Pay rates protected
 
The existing pay scales of the former state employees will also be protected as they move into modern awards.
 
‘FWA will also be able to make remedial take-home pay orders where the take-home pay of one or more employees is reduced as a result of movement from the Division 2B State award to the modern award,’ DEEWR said.
 
Same long service leave
 
Employees on these Div 2B state instruments will also keep any long service leave provisions they currently have under state laws.
 
‘Modern awards cannot deal with LSL but some incoming State system employees may have LSL entitlements under State awards,’ DEEWR said.
 
‘FWA will be given power to make orders preserving those LSL entitlements from 1 January 2010, which would operate alongside the modern award that covers an affected employee.’
 
‘These State-award based LSL entitlements would be preserved for a maximum period of 5 years from 1 January 2010, pending the development of a national uniform LSL NES.’
 
BOOT 
 
Division 2B employees will also be covered by the BOOT (better off overall test).
 
The DEEWR submission said that an enterprise agreement made in the national system after 1 January 2010 will be required to result in Div 2B referral employees being better off overall than:
  • an applicable Div 2B State award, if an application for approval of the enterprise agreement is made to FWA in the 12-month period during which state awards are preserved; or
  • an applicable modern award, if an application for approval of an enterprise agreement is made to FWA after the 12-month transitional period; or
  • an applicable Div 2B State enterprise award.

 

Post details