Award Modernisation - [2010] FWA 3102

[2010] FWA 3102

FAIR WORK AUSTRALIA

STATEMENT

Fair Work Act 2009
Division 2B—application of this Act in States that refer matters

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Schedule 3A, items 29 and 30—FWA to consider varying modern awards etc.

Award Modernisation
(AM2010/52)

JUSTICE GIUDICE, PRESIDENT

MELBOURNE, 23 APRIL 2010

AWARD MODERNISATION – DIVISION 2B STATE AWARDS

[1] This statement concerns award modernisation and in particular the transitional arrangements which may be necessary as a result of the termination of Division 2B State awards.

[2] Division 2B of Part 1-3 of the Fair Work Act 2009 (Fair Work Act) provides for the reference by States to the Commonwealth Parliament of powers not otherwise within its legislative competence. Relevant powers have been referred by the States of Queensland, New South Wales, Tasmania and South Australia with effect from 1 January 2010. The Commonwealth has enacted transitional provisions to deal with State referral of powers pursuant to Division 2B. Those provisions are in Schedule 3A of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Transitional Act). Schedule 3A of the Transitional Act deals with transitional arrangements for employers and employees who were covered by State awards prior to the referral and with a number of other matters. In particular item 3 of Schedule 3A provides for the creation of Division 2B State awards.

[3] Item 3 provides that on the commencement of the relevant referral of powers, employers and employees affected by the referral commence to be covered by federal instruments known as Division 2B State awards. In each case the referral commenced on 1 January 2010. A Division 2B State award is taken to include the terms and conditions which were contained in the relevant State award immediately before the referral. Item 21 of Schedule 3A provides that a Division 2B State award terminates 12 months after the Division 2B referral commencement. Subject to some limited exceptions mentioned below, Division 2B State awards will therefore terminate on 31 December 2010. At that time it is anticipated that the employers and employees will commence to be covered by the relevant modern award.

[4] The exceptions referred to relate to employees to whom training arrangements apply (and employees participating in the Community Jobs Plan or the Green Army). To the extent that Division 2B State awards apply in relation to such employees, the awards will continue to operate after 31 December 2010. 1

[5] Item 29 of Schedule 3A provides that during the 12 month life of each Division 2B State award, Fair Work Australia must consider whether to vary a modern award to continue the effect of terms of a Division 2B State award for a transitional period after the Division 2B State award terminates. In addition, item 30 of Schedule 3A provides that during the 12 month life of each Division 2B State award Fair Work Australia must also consider whether to make orders to continue the effect of terms of a Division 2B State award relating to long service leave for a transitional period after the award terminates.

[6] The process for carrying out the requirements of items 29 and 30 of Schedule 3A will be:

(a) a list of Division 2B State awards classified by modern award and by State will be made available on the Fair Work Australia website at the Division 2B State awards web page; 2

(b) any interested person or body may make an application to Fair Work Australia to:

(i) vary a modern award to continue the effect of terms of a Division 2B State award beyond its termination date;

(ii) make an order continuing the effect of a Division 2B State award beyond its termination date in relation to long service leave;

(c) the application should be lodged by 30 June 2010 and should include particulars of the variation or order sought and the grounds relied on;

(d) applications may be lodged by email at: [email protected] or by post at one of the Fair Work Australia addresses listed on the website; 3

(e) after 1 July 2010 directions will be issued for finalising the applications.

[7] All applications to vary modern awards pursuant to item 29 of Schedule 3A or for orders in relation to long service leave pursuant to item 30 of Schedule 3A and any directions issued after 1 July 2010 will be published on the Fair Work Australia website at the Division 2B State awards web page. Organisations or persons who have lodged an application or indicated an interest in the Division 2B State award process will be placed on a subscriber list and notified by email of developments. Details of how to subscribe are available at the Division 2B State awards web page.

PRESIDENT

1 See items 36A and 36B of Schedule 3A to the Transitional Act, inserted by Regulation 3A.01 of the Fair Work (Transitional provisions and Consequential Amendments) Regulations 2009.

2 Go to and click on Awards and award modernisation, Award modernisation and then Division 2B State awards.

3 by authority of the Commonwealth Government Printer