Workplace Legislation Changes 2005-2009

Rudd’s Fair Work Act

On 20 March 2009, the Rudd Government finally secured parliamentary support for its Fair Work Bill.  The majority of the Fair Work Act 2009 (FW Act) took effect on 1 July 2009, replacing the Workplace Relations Act 1996 (WR Act).  The remainder takes effect on 1 January 2010.

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State Legislation

Victoria, Queensland, Tasmania and South Australia have all introduced legislation to refer certain matters relating to their industrial relations powers to the Commonwealth. The Northern Territory and the Australian Capital Territory are already governed by the Fair Work Act 2009 (Cth) by virtue of s 122 of the Constitution of the Commonwealth. Western Australia has indicated that it will not refer it’s powers to the Commonwealth. New South Wales has not yet introduced any referral legislation, but is expected to do so.

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Howard’s Work Choices

Workplace relations regulation has undergone a period of unprecedented change since the Howard Government announced its planned Work Choices legislative amendments in late 2005. Work Choices took effect on March 27, 2006 and has been amended several times between then and late 2007 due to unforeseen consequences in the original draft.

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The High Court Decision

The constitutionality of the Work Choices legislation was challenged by all state governments and several unions in the High Court Workplace Relations case of 2006, but the High Court majority upheld the legislation in its entirety in November 2006.

The High Court decision paved the way for the-then Howard government and future federal governments to govern industrial arrangements using the Corporations Power, rather than the formerly-used Conciliation & Arbitration Power.

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Forward with Fairness

The Labor Opposition in 2007 announced it would also use the Corporations Power if it won office.

True to its word, when Labor won the November 2007 federal election, it announced its plans to move towards a uniform national system for the private sector through the use of the Corporations Power. It would call the new system Forward with Fairness.

In March 2008, the Forward with Fairness transitional legislation took effect, its main purpose being to outlaw the making of new Australian Workplace Agreements (AWAs) and to introduce the new no-disadvantage test against which individual and collective agreements would be tested.

As of October 2008, stakeholders were awaiting the release of Labor’s draft substantive legislation, expected by most commentators to take the form of a completely new version of the Workplace Relations Act.

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