Unincorporated private businesses to Fair Work System — transition period

Analysis

Unincorporated private businesses to Fair Work System — transition period

Private unincorporated trading businesses are now generally ‘national system employers’ (except for those in Western Australia), following the referral of IR powers by the states (except Western Australia) to the Commonwealth. Some employers are unclear about the transition period to the Fair Work system that applies to these businesses.

WantToReadMore

Get unlimited access to all of our content.

Private unincorporated trading businesses are now generally ‘national system employers’ (except for those in Western Australia), following the referral of IR powers by the states (except Western Australia) to the Commonwealth. Some employers are unclear about the transition period to the Fair Work system that applies to these businesses.
 
This issue was highlighted in an inquiry to WorkplaceInfo.
 
We are a charitable institution located in Queensland and have employees covered under a number of different Queensland state awards.
 
We recently received advice from the state industrial relations office that the state IR system, as it applies to unincorporated employers in the private sector, has been referred by the Queensland Government to the federal Fair Work industrial relations system.
 
Apparently, this has happened because the Queensland Government (and other state governments) has referred its industrial relations powers to the Commonwealth.
 
Consequently, our employees have been covered by the Fair Work Act since 1 January 2010.
 
What are the consequences for our organisation being transferred from the state to the federal workplace relations system; and, are there any immediate issues we need to address?
 
State awards that now fall under the Fair Work Act 2009 because of the referral of industrial relations powers by the respective state governments are called Division 2B Reference Awards.
 
There are a number of provisions specific to this type of industrial instrument.
 
Division 2B state awards continue with their state award terms until 31 December 2010. The applicable modern award will then cover these employees from 1 January 2011.
 
Wage rates currently prescribed by the applicable state reference award will continue in force although any ‘embedded’ pay increases (ie wage variations already determined by the relevant state industrial tribunal to apply during 2010) will apply from the specified operative date.
 
From 1 January 2010, the National Employment Standard (NES) overrides any relevant term of a Division 2B state award that is less beneficial to the employee, while relevant terms in the state award that are more beneficial than the NES will continue to apply.
 
The ‘standard’ Dispute Settling Procedure under the Fair Work Act applies in place of the state award’s provision.
 
Fair Work Australia has the capacity to write specific transitional provisions during the course of 2010.
 
Source: Paul Munro, IR Consultant.
 
Post details