Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009
Select Legislative Instrument No. 166, 2009
made under the
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Compilation No. 12
Compilation date: 11 April 2024
Includes amendments: F2024L00297
Registered: 13 April 2024
About this compilation
This compilation
This is a compilation of the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 that shows the text of the law as amended and in force on 11 April 2024 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 1—Preliminary
1.01 Name of Regulations
1.03 Definitions
Part 2—Transitional provisions for Part 2 of Schedule 2 to Act (regulations about transitional matters)
Division 1—Matters about redundancy
2.01 Redundancy pay applications—continuing Schedule 6 instrument
2.02 Redundancy pay applications—transitional instrument
2.02A Retention or redeployment period—entitlement to redundancy pay
Division 2—Obligations for employee records and records for transferring employees
2.03 Employer obligations for employee records made before WR Act repeal day
2.04 Obligations for transfer of records concerning transferring employee
2.05 WR Regulations continue to apply to records for transferring employee made before WR Act repeal day
2.05A Award‑based transitional instruments including notional agreement preserving State award
2.05B Permits, licences and authorisations issued under State industrial laws of Division 2B referring States
Division 3—Application of better off overall test
2.06 Modifications of the Act—better off overall test after end of bridging period if modern award contains transitional provisions
Division 4—Matters relating to reduction in take‑home pay
2.07 Orders remedying reductions in take‑home pay
2.08 Avoiding likely reductions in take‑home pay
2.09 Describing classes of employees and outworkers
Part 3—Transitional provisions for Schedule
Overview
The Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 were enacted under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. These regulations aim to address transitional issues and consequential amendments arising from the implementation of the Fair Work Act 2009. The regulations were introduced by the Parliament of Australia to ensure a smooth transition from the previous industrial relations framework to the new system established by the Fair Work Act. The regulations cover various aspects, including the treatment of redundancy pay applications, the obligations for employee records, the application of better off overall tests, and the avoidance of reductions in take-home pay. These provisions are designed to maintain continuity and protect the rights of employees and employers during the transition period.
Scope and Application
The Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009, made under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, aim to facilitate the transition from the old Workplace Relations Act 1996 (WR Act) to the new Fair Work Act 2009 (FW Act). These regulations apply to various transitional matters, including the handling of redundancy pay applications, obligations for employee records, and the continued existence of certain awards and workplace agreements. The regulations are designed to ensure a smooth transition and to maintain consistency in employment conditions during this period. They apply to employers, employees, and other relevant parties who were subject to the WR Act before its repeal. The regulations provide for the continued application of certain provisions of the WR Act and its regulations to ensure that ongoing obligations and entitlements are not disrupted. They also establish transitional arrangements for the continuation of certain awards and workplace agreements, ensuring that employees and employers are not adversely affected during the transition period. The regulations cover a broad range of employment-related matters, including the handling of redundancy pay applications, the obligations of employers to maintain employee records, and the continued application of certain awards and workplace agreements. They ensure that the transition to the new regulatory framework is managed in a way that minimises disruption to employment conditions and obligations.
Key Provisions
- The Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 (the Regulations) contain several key provisions that govern transitional arrangements and consequential amendments under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Act). These provisions address redundancy pay applications, employee records, transitional instruments, and the application of the better off overall test, among other things.
- For redundancy pay applications, Regulation 2.01 specifies that if an employer would be obliged under a continuing Schedule 6 instrument to pay redundancy pay and the instrument permits a redundancy pay application, the functions of receiving and determining the application are conferred on the Fair Work Commission (FWC). Similarly, Regulation 2.02 states that if an employer would be obliged under a transitional instrument to pay redundancy pay and the instrument permits a redundancy pay application, the functions are conferred on the Fair Work Australia (FWA). Regulation 2.02A addresses retention or redeployment periods and entitlement to redundancy pay, clarifying that if an employee is entitled to an amount of payments equal to or greater than the National Employment Standards (NES) amount, they are not entitled to the NES amount. Conversely, if the amount is less than the NES amount, the employee is entitled to the NES amount reduced by the amount received.
- Regarding employee records, Regulation 2.03 mandates that employers must continue to keep records made before the Workplace Relations Act 1996 repeal day in accordance with the Workplace Relations Regulations 2006. Regulation 2.04 outlines the obligations for transferring records concerning transferring employees, requiring the old employer to transfer records to the new employer and for the new employer to keep those records as if they were made by the new employer.
- Regulation 2.06 modifies the Act to apply the better off overall test after the end of the bridging period if a modern award contains transitional provisions. This ensures that enterprise agreements are assessed against the modern award as it operates on specific dates during the transitional period.
- Additionally, the Regulations impose obligations on parties governed by the Act. For instance, employers must keep employee records for a certain period, transfer records as required, and comply with various transitional and consequential amendments. Employees and employers must also comply with the terms of modern awards, enterprise agreements, and other relevant instruments.
- The Act and the Regulations also establish offences, penalties, and civil or criminal consequences for breach. For example, contraventions of civil remedy provisions can result in penalties up to 20 penalty units, which can be enforced by an inspector and heard in the Federal Court, Federal Circuit and Family Court of Australia (Division 2), or an eligible State or Territory Court. Furthermore, the Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009 include transitional civil remedy provisions and modify references to employees, employers, and employment to include transitional employees, transitional employers, and transitional employment as defined in the Workplace Relations Act 1996.
- Area of Law
- Labour Law
- Employment & Labour Law
- Instrument
- Regulation
- Concepts
- Transitional Provisions
- Repeal & Amendment
- Enforcement Powers
- Civil Penalty Provisions
- Compliance Obligations
- Reporting & Disclosure Obligations
