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Fair Work Act 2009 – Important Deadlines

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Following the commencement of the Fair Work Act 2009 (FW Act) on 1 July 2009, it is essential that employers are aware of several important deadlines that are set by the new laws.

Ongoing assessment and variation of Collective Agreements

The Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act), which deals with the ongoing operation of certain laws under the repealed Workplace Relations Act 1996 (WR Act), also commenced operation on 1 July 2009.

This Transitional Act provides for a ‘cut off period’ for the following transitional provisions:

  1. Workplace agreements under the WR Act that were made (i.e. approved by employees) prior to 1 July 2009, but not lodged with the Workplace Authority, must be lodged within 14 days of the workplace agreements being made/approved by employees.  A workplace agreement not lodged within this time will be rejected by the Workplace Authority.
  2. Variation agreements lodged for the purposes of a workplace agreement meeting the No Disadvantage Test (NDT) must be lodged within 37 days from the date detailed on the Workplace Authority’s notice advising that the NDT has not been met. This is the case even where the NDT notice was dated prior to 1 July 2009.

After this cut off period, there will be a very limited right for FWA to vary transitional workplace agreements (i.e. to resolve ambiguities). An exception to this will be in relation to pre-reform certified agreements, which may be varied after the nominal expiry date. These applications can be made until 31 December 2009 (i.e. by the end of the bridging period).

Ongoing assessment and variation of Collective Agreements

From 1 July 2009, unions and their members may only take protected industrial action if that action has been authorised by FWA.  Any ballot orders which were made before 1 July 2009 have no effect moving forward under the FW Act.

The union may apply to FWA before 28 July 2009 to ‘re-validate’ the old protected action ballot to allow employees to continue to take protected industrial action.  If an application is not made within this time, the old protected action ballot cannot be re-validated and the union will have to apply to FWA for a new ballot to be conducted.

Importantly, any industrial action taken by the union or its members before the old ballot is ‘authorised’ by FWA or a new ballot order is made will not be protected industrial action.

In summary, FWA may authorise the old ballot if it is satisfied that :

  1. Protected industrial action has taken place since 1 March 2009 in support of a proposed collective agreement;
  2. No unprotected industrial action has taken place since 1 July 2009;
  3. No agreement has already been approved; and
  4. The union/employees are still genuinely trying to reach an agreement.

If FWA re-validates the ballot, the results of that ballot are taken to be declared on the day of the order. The union and its members will still need to provide 3 working days’ notice from that date before taking protected industrial action.

This time frame will be essential for any employer involved in union negotiations to ensure that they are aware as to what action will be protected industrial action under the FW Act.

Author: Adrian Wong