Bill clears way for states to refer IR powers

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Bill clears way for states to refer IR powers

IR Minister Julia Gillard has introduced legislation into Federal Parliament to facilitate referrals of industrial relations powers to the Commonwealth from the states.

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IR Minister Julia Gillard has introduced legislation into Federal Parliament to facilitate referrals of industrial relations powers to the Commonwealth from the states.
 
South Australia and Tasmania have introduced legislation into their parliaments to allow for a referral, New South Wales is in discussions but has not made a decision, and Queensland has agreed in principle but is negotiating on certain issues. [Note: Victoria referred its IR powers to the Federal Government in the 1990s under the Kennett Government.]
 
Only WA holding out
 
Only Western Australia has declared publicly it will not refer its powers, and Gillard has asked the state to reconsider this decision.
 
When enacted, the Fair Work Amendment (State Referrrals and other Measures) Bill 2009 will give effect to any referrals from states on or before 1 January 2010.
 
This will enable the Commonwealth to:
  • extend the Fair Work Act 2009 in referring states to cover unincorporated employers and their employees, outworker entities and extend the operation of the general protections
  • extend the Fair Work Act so that it applies uniformly in referring states
  • establish arrangements for the transition of referral employees and employers from state industrial or workplace relations systems to the new national system.
 
Local government can be excluded
 
The Bill recognises that referring states can choose the extent to which matters relating to state public sector or local government employment are included or excluded from references.
 
States can also declare that certain state public administration and local government employers, over which the Commonwealth currently has power (such as constitutional corporations), are excluded from the national system. However, the Minister administering the Fair Work Act must endorse the declaration.
 
Key features
 
Key features of the transitional arrangements under the Bill are:
  • State awards and agreements will be preserved as federal instruments in the same terms as the state instrument.
  • These will be known as Division 2B Sate awards and agreements and will operate on a ‘no detriment’ basis with the NES and national minimum wage.
  • A Division 2B state award (other than a Division 2B enterprise award) will continue to apply as a federal instrument for 12 months from the referral commencement.
  • 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 employers and employees.
  • FWA will 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 a movement to a modern award.
  • A Division 2B agreement will continue to operate as a federal instrument until replaced under FWA or terminated.
  • The Bill provides a model dispute resolution clause for 2B Awards.
  • Bargaining and industrial dispute processes under state systems will not be carried over into the new system.
  • As a general rule, proceedings in relation to conduct that occurred before the referral commencement will remain subject to state laws and be dealt with in the state systems.
 
End confusion
 
Gillard said referrals by the states would end the current problems of complexity, confusion, overlap and waste.
 
Full text
 
Full text of the Bill and Explanatory Memorandum are available online.
 
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