B R IE F
"A Rose by any other
Name ... ": 1
The Fair Work Act 2009
Tracy Caspersz
Barrister, Francis Burt Chambers
to help workers gain higher wages and
better benefits, we once again need to level
the playing field between organized labor and
employers. .. " (Barack Obama, The Audacity
of Hope).2
Commencing on 27 March 2006, the
Howard government's law, WorkChoices}
fundamentally changed the face of industrial
relations in Australia. Relying heavily on
the Constitution's corporations power,4
WorkChoices controversially amended the
Workplace Relations Act 1996 (the WR Act)
to exclude the operation of state industrial
relations laws so far as they would otherwise
apply to constitutional corporations and their
employees. s It also notoriously undermined
the influence of unions in workplaces run by
constitutional corporations.
WorkChoices became an election issue during
the last federal election. The then-opposition
Labor Party promised to repeal it It won the' ,.
election ,held on 24 November 2007.
The demise of WorkChoices
Following that, the Rudd government
implemented its election promise as follows:
28 March 2008 -
the Workplace
Relations Amendment (rransition to
Forward with Fairness) Act 2008 (the
TFF Act) commenced. 6 It prohibited the
making of new AWAs/ and introduced
indiVIdual transitional employment
agreements (lTEA) 8 and a more rigorous
no-disadvantage test for both ITEAs and
collective agreements 9
7 April 2009 - the Fair Work Act 2009
(the FW Act) received Royal Assent;
the commencement of sl (short title)
and s2 (a table prescribing the date
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22
of commencement of the remaining
provisions).
26 May 2009 - some of the structural
provisions of the FW Act commenced,'°
namely: ss3-40 (being the objects,
definitions and application of the FW Act);
ss573-718, relating to the establishment
of Fair Work Australia (FWA) 11 and the
Fair Work Ombudsman (the FWO) 12;
and schedule 1 (relating to transitional
administrative provisions concerning
FWA and the FWO).
1 July 2009 - in accordance with items 3
and 5 of the table in 52(1) of the FW Act,
a number of key provisions of the FW Act
commenced 13, including those relating to
industrial action, enterprise agreements
and right of entry.
31 December 2009 - the last day of
operation of the Australian Industrial
Relations Commission (the Federal
•
Commission)," the Australian Industrial
Registry (AIR), the Australian Fair Pay
Commission (AFPC), the Workplace
Authority (WA) and the Workplace
Ombudsman. s
1 January 201 0 - In accordance with
items 3 and 5 of the table in s2(1) of the
FW Act, the remaining provisions of the
FW Act commenced 16, including those
relating to the 10 National Employment
Standards (the NES)'7 and 'modern
awards';,a and FWA will take over
from the Australian Industrial Relations
Commission (the Federal Commission),'9
the Australian Industrial Registry (AIR), the
Australian Fair Pay Commission (AFPC),
the Workplace Authority (WAj and the
Workplace Ombudsman;
j
31 January 2010 - the last day of
operation of the Australian Building
and Construction Commission, whose
functions will be taken over by the
FWo. 20
Aim of this article
This article discusses various features of the
FW Act and some of the powers of FWA. It
concludes that, in relation to the employment
relationship between constitutional
corporations and their employees:
1. whereas WorkChoices took it away, the
FW Act gives much back to the unions in
the form of easier access to employees,
and enhanced rights to represent them in
collective bargaining;
2. although the underlying philosophical
objectives may be different, like the WR
Act, the FW Act does not deregulate,
but continues to closely regulate, the
employment relationship.
Exclusive operation
The WR Act is stated to operate to the
exclusion of laws of a state. 21 By comparison,
the FW Act operates to the exclusion of all
state ... industrial lawsY On the face of it,
these state ... industrial laws comprise three
mutually-exclusive categories, namely:
1. a 'general state industrial law', which is
defined to include the Industrial Relations
Act 1979 of Western Australia (the IR
Act);23 or
2. an J...ct of a state'24 that applies to
employment generally and has certain
purposes (e.g. that of regulati ng workplace
relations);25 or
3. a 'law of a state' so far as it provides for
various things. 26
AUGUST 2009
Impact of the FW Act on the state IRe's
contractual benefits jurisdiction
The IR Act characterises a claim by an
employee for a benefit under his contract
of employment under s29(1 )(b)(ii) as an
'industrial matter' and, so, within J~,e
jurisdiction of the Western Australian
Industrial Relations Commission (the State
IRQ, as long as the benefit claimed is not
of a 'commercial nature'.2! It has been
accepted that WorkChoices excluded the
operation of the IR Act with the effect that
a claim by an employee of a constitutional
corporation under s29(1 )(b)(ii) was rendered
non-justiciable before the State I RC. 28
Like the WR Act/ 9 the FW Act does not
exclude the operation of a law of a state that
deals with a 'non-excluded matter'30 Unlike
the WR Act, the FW Act now provides that
a claim for the enforcement of a contract of
employment is a 'non-excluded matter'.31 In
this way, the FW Act expressly 'saves' a law of
a state that deals with such claims.
A s29(1 )(b)(ii) claim is not the same as a
common law claim to enforce a contract of
employment.J2 However, if it comes within
the ambit of the new 'non-excluded matter',
then it is 'saved' and is now justiciable before
the State IRC33 If this is so, then, arguably, the
same also applies to 529(1 )(b)(ii) claims by
employees of constitutional corporations that
arose whilst WorkChoices was in operation.
There are some difficulties in reaching this
conclusion as the FW Act defines the whole of
the IRAct as a "general state industriallaw ff • 34
For instance, query whether a particular
provision of the IR Act, such as s29(1 )(b)(ii),
can be 'carved out' of that definition such
that it can be regarded separately as a 'law of
a state' capable of deal ing with the new'non-
excluded matter'. However, the Explanatory
Memorandum to the FW Bill suggests that
this may in fact be SO.35
Unfair dismissal
The FW Act provides remedies for unfair
dismissal for all employees of constitutional
corporations 36 if they have been employed for
at least 6 months (or 1 year if their employer
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AUGUST 2009
is a 'small business employer' - i.e. one with
less than 15 employees) and they are either
covered' by a modern award, or an enterprise
agreement applies to their employment, or
they earn less than $108,300/yearY The
np1QriOljs 'Woerii'jJlbyee' rule introduced by
WorkChoices will no longer apply.38
One innovation introduced by the FW Act is
the ability for applications for unfair dismissal
to be made by phone!39 Another is that, when
considering an unfair dismissal application,
FWA must conduct a conference or hold a
hearing only if, and to the extent that, facts
are in dispute. 4o However, a hearing must not
be held unless FWA considers it necessary
to do so taking into account the views of
the parties and whether it would be the
most effective and efficient way to resolve a
matter,41
Right of entry
The new, wider rights of entry prescribed by
the FW Act have the potential to re-establish
unions in workplaces run by constitutional
corporations. It is one area in which the FW
Act differs substantially from the WR Act.
Unlike WorkChoices,42 it is no longer necessary
for a union to be bound beforehand by an
award or collective agreement applying to
work carried on in a workplace to which entry
is sought. 43 This will make it much easier for
unions, including those that previously had
no right of entry under the WR Act because
they were not bound by a relevant award or
collective agreement, to enter workplaces,
the only remaining limitation of note being
that the union must be entitled to represent
the 'industrial interests' of the employee(s) in
question. '4
An employee who is a member or is eligible
for membership of a union (that being the
way in which the limitation was described
in the WR Act4 5) would be one whose
'industrial interests' can be represented by
that union. However, query whether a union
can also represent the 'if]dustrial interests'
of other types of employees (e.g. those who
are not eligible for membership but who
nonetheless nominate the union to represent
them, for instance, because it is industrially
very powerful or militant), in which case the
formulation under the FW Act is much less
limiting than under the WR Act.
Once entry is gained, a union can hold
discussions with employees about a wide
range of matters. Such discussions will be an
opportunity for unions to build and maintain
relationships and influence with employees,
'something that may not always favour
employers. 46 Should there be a dispute about
whether right of entry is being exercised
(or properly permitted) then, like the WR
Act,'7 FWA has the power to deal with such
disputes. 48
The NES
The NES49 relate to:
i. maximum weekly hours that, generally
speaking, for full-time employees, will be
regarded as 38 hours per week;oo
ii. requests for flexible working
arrangements;51
iii. parental leave;52
iv. annualleave/3
v. personal/carer's leave and compassionate
leave;54
VI. community service leave;55
vii. long service leave/ G
viii. public holidays;>?
ix. notice of termination and redundancy;58
x. provision of a Fair Work Information
Statement. 59
An employer must'-not contravene any of the
NES.GO Curiously, an order cannot be made
in relation to a contravention or alleged
contravention of the NES concerning an
employee's request for flexible working
arrangements or an extension of unpaid
parental leave, which can only properly be
refused on reasonable business grounds. 61
Of course, reasonable business grounds
may not necessarily avoid an application
under a relevant anti-discrimination law on
the grounds of, say, family responsibilities,
such laws being expressly 'saved' from the
exclusive operation of the FW Act. 62
23
B R IE F
Modern awards
Before WorkChoices, under the WR Act and
its predecessors, awards were traditionally
made in settlement of industrial disputes,
in reliance upon the Constitutional power
to make laws for the settlement of interstate
industrial disputes. 63 As such, they generally
applied to named employers. 64 A 'common
rule' award, whereby employers could be
bound by virtue of being in a particular class
or industry described in the award,65 was not
the norm.
The use by the Howard government of the
corporations power, continued by the Rudd
government, enables provision to be made
for what the FW Act terms 'modern' awards.
These will apply to employers, employees
and outworker entities as specified by name
or class (organisations, including unions, must
still be specified by name).66 A class may be
described by reference to an industry, or
particular kinds of work. 67 Hence, modern
awards will have the potential to operate
akin to common rule awards, without state
or territory differences (although there may
be provision for such differences to continue
for a transitional period of five years),68 with a
wide reach to even employers and employees
who are not specifically named therein.
The 'modern award objective' is to provide" of the enthusiastic uptake ~y employers of
a fair and relevant minimum safety net of <' AWAs dunng the WorkCholces era suggests
.' to the contrary.
terms and conditions. fi9 Under the FW Act,
generally speaking, a 'modern' award can
include terms in relation to minimum wages;
type of employment (i.e. full-time and so
on); hours of work and other arrangements
for when work is performed; overtime rates;
penalty rates; annualised wage arrangements;
allowances; leave; superannuation; and
procedures for consultation, representation
and dispute settlemenUo
These matters are not dissimilar to those
permitted under the WR Act71 , one exception
being, perhaps, an apparent ability for a
'modern' award to contain a term prescribing
maximum or minimum hours of work for
regular part-time employees. 72 Such a term
was a 'non-allowable matter' under the WR
Act. 73
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24
A 'modern' award:
must include a 'flexibility term' allowing
an employee and their employer to agree
an 'individual flexibility arrangement'
varying the effect of the award to meet
the genuine needs of the employee and
the employer;74
cannot include a term that effectively
contravenes the 'general protections'
conferred upon persons in workplaces, or
that requires the payment of a bargaining
services fee;75
• will not apply to
employees'.76
FWA must conduct a four-yearly review of
'modern' awards. 77 In similar fashion to the
Federal Commission/ B FWA has the power to
vary, revoke or make 'modern' awards during
that four-year period if necessary to meet the
modern award objective.?9
Enterprise agreements
In the Explanatory Memorandum to the
FW Bill, the Minister asserts that /J ••• most
employers respect their employees' right
to bargain collectively", BO thus suggesting
an apparent acceptance by employers of
collective bargaining. Anecdotal evidence
Whatever may be the case, in the context
of good faith bargaining in negotiations for
an enterprise agreement (EA),31 unlike the
Federal Commission under the WR Act, FWA
can now compel an employer to engage
in collective bargaining if a majority of its
workforce wishes to do SO.82 This goes well
beyond a repeal of WorkChoices in that it sees
a return to a concept of good faith bargaining
akin to what was in place before WorkChoices
and even before the WR Act itself, under
the Industrial Relations Act 1988. 83 Together
with the broader powers of unions to enter
into workplaces to have discussions with
employees, this is a significant aspect of the
FW Act that will probably assist unions by
requiring employers to deal with them.
Other new prOVISIons of the FW Act that
permit an EA to contain terms favourable to
unions also have the potential to entrench
un ions in the employment relationship. Under
the WR Act, terms were restricted to 'matters
pertaining' to the relationship between
employers and employees generally.84 Now,
in addition to such 'matters pertaining',85 and
presumably in reliance on the corporations
power, the FW Act permits an EA to contain
terms pertaining to the relationship between
an employer and the union (as opposed to
employees),86 as well as to payroll deductions
'high-income for any purpose authorised by an employee
under the agreement, e.g. union fees. 37
An obligation regarding payroll deduction
of union fees from employees' wages has
traditionally been held not to be a 'matter
pertaining' 36 on the grounds that it is simply
the imposition of a dues-collecting obligation
on a corporation; 89 where the employer
is an agent or debtor and the employee is
principal or creditor. 90 The new provisions
beg the question whether, in this regard,
the FW Act is in fact a law that prescribes •
norms regulating the relationship between
constitutional corporations and their
employees (ie. a law prescribing the industrial
rights and obligations of constitutional
corporations and their employees and the
means by which they are to conduct their
industrial relations) within the purview of the
corporations power. 91
Further, unlike the WR Act, which contained
no such provision,92 the FW Act now also
requires an employer wishing to negotiate
an EA to first give notice to each employee
to be covered of a 'right' to be represented
by a bargaining agent,93 The notice must
advise employees that, unless they nominate
someone else, if they are a member of
a union that is entitled to represent their
industrial interests, that union will be their
bargaining agent,94
It would not be unusual for many employees
to be happy to default to this position, to
save themselves the inconvenience of having
to nominate another person or bargaining for
themselves. As a result, unions will probably
AUGUST 2009
end up as bargaining agents for many
employees in the making of an EA. In that
capacity, unions will be able to advance their
own interests by the negotiation, ostensibly
on behalf of employees, of terms in EAs
permitting the deduction of union fees from
their wages, and other terms pertaining't6' , FWA can make, or refuse to make, orders that
the relationship between the employer and
the union.
As a reminder that EAs cannot be used
to undermine the award safety net, the
FW Act also prescribes a potentially more
stringent 'better off overall test' (BOOT) for
the approval of an EA. This requires that each
employee to be covered by an enterprise
agreement should be better off overall than
they would be under an applicable award. 95
By comparison, the 'no disadvantage test'
prescribed by the WR Act referred to the
general body of employees to be covered
by an enterprise agreement being no worse
off overall. The federal government has
signalled 96 that it will make a regulation with The benchmark under the WR Act was a
the effect that the BOOT will be applied
again two years and five years after initial
approval of an EA, to take account of the
transitional provisions in 'modern' awards. 97
Industrial action
Similar to the WR Act, the FW Act restricts
the taking of unprotected industrial action.
Unlike the WR Act, the FW Act does not
contain an express provision imposing the
burden of proof of establishing the 'safety'
exception to the definition of 'industrial
action' on the person seeking to rely upon
it. 98 Like the Federal Commission under the
WR Act,99 the FWA has the power to make
orders to stop industrial actionY)()
It has been accepted that there is at least a
serious question to be tried that, under the WR
Act, a union can be bound by an order not
to engage in unprotected industrial action,101
particularly given a provision that prescribed
that a person (e.g. a union) engaged in conduct
(e.g. industrial action) if they directly or indirectly
were a party to or concerned with the conduct
in question. 102 There is no equivalent to this
provision in the FW Act, which makes it unclear
whether this remains the case.
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AUGUST 2009
The FW Act expressly provides that FWA is when they 'transfer' their employment from
not required to hold a 'hearing' in performing their old to a new employer. This is further
functions or exercising powers, except emphasised by the fact that the FW Act also
as provided under the FW Act. '03 Also, expressly provides that, on a 'transfer of
FWA is not bound by rules of evidence or employment', an employee's service with the
proc;edyre, 1~4Q.Uer'y Whether th is means that old employer will count as service with the
new employer. ll7 A 'transfer of employment',
industrial action stop without a hearing of an a 'transfer of business' does not even require
application for such - that is to say, on the the 'connection' required for if the new
papers, and by informing itself as it considers employer is an AE of the old employer. ll8
appropriate. IDS Given the fact that stop orders
can be enforced by injunction of the Federal The new rules concerning a 'transfer of
Court of the Federal Magistrates Court,'06 business' expose a wider variety of new
it would be surprising if this approach was employers to the possibility of acquiring
taken, particularly if facts are contested. obligations that they never had before. This
may be so, not only in respect of the
Transfer of business 'transferring em ployee' from the old em player,
The FW Act prescribes new rules regarding but also in respect of new employees who
employees' entitlements under so-called perform transferring work. 119
'transferable instruments"07 when there is
Unfair dismissal: reinstatement to
a 'transfer of business'.'08 This is a new
associated entities
concept. '09
Like the Federal Commission,12o FWA will
be able to arbitrate unfair dismissals. 121
'transmission' of business, with the focus Interestingly, FWA has the power'22 to order
being on whether there was a transfer of a an AE of an employer to appoint a dismissed
business or a part of a business from the old employee, if their position with the employer
to the new employer." o By contrast, and no longer exists at the time of the dismissal,
despite the use of the word 'business' in the and 'that' position, or an 'equivalent' one,
phrase 'transfer of business', the focus of the exists with the N. The power is wide: the
FW Act is not on the transfer of a 'business' order for appointment can be to either the
but on whether the employee in question original position, or to 'another position',
is employed within a certain time period with the AE.123 No such power was available
(three months) by the new employer 111 to to the Federal Commission under the WR
perform at least substantially the same work Act.
as before (the transferring work) and there is
a 'connection' between the old and the new A number of AEs might potentially be exposed
employer. ll2 In, presumably, heavy reliance in anyone application for reinstatement.
on the corporation's power, the reqUired Despite this, there is no apparent requirement
'connection' can be constituted by a transfer in the FW Act that the AE be a party to
from the old to the new employer of legal, or proceedings before an order can be made
beneficial, ownership of assets that relate to against it.
or are used in cohnection with the transferring
'Genuine operational reasons' vs 'a case
work, if the new employer is an associated
entity (AE)113 of the old employer; 114 or if the
of genuine redundancy'
employee is a part of an 'outsourcing'115 or The FW!\s power to order that an employee
'insourcing"16 of employees. of a constitutional corporation be appointed
by an AE substantially widens the remedies
As evident, by comparison to the WR Act, available to such employees if they lose
in this fashion, the FW Act provides a much their jobs because of, say, a restructuring
greater measure of protection of employees' of the employer's business. Under the WR
entitlements under industrial instruments Act, this might have been for 'genuine
25
BRIEF
operational reasons','24 in which case the
dismissed employee was barred from making
an application to the Federal Commission
claiming unfair dismissal. 125 By comparison,
under the FW Act, an employee is barred
from making an application to the FWA
claiming unfair dismissal only if the dismissal
is 'a case of genuine redundancy',126 a
term that is defined to mean a situation
where the employer no longer requires the
employee's job to be performed and the
employer has complied with any obligation
in a modern award or an EA to consult about
the redundancy.127 This concept is related
to FWl\s power to order reinstatement to
an AE in that a dismissal is hot 'a case of
genuine redundancy' if it would have been
reasonable in all the circumstances for the
person to have been re-deployed within the
employer's enterprise or that of an AE.128
Small Business Dismissal Code
The FWActexempts small business employers
from unfair dismissal applications if they
dismiss "consistent with the Small Business
Fair Dismissal Code", 129 declared by the
Acting Minister on 24 June 2009. 130 However,
there is potential for disputation about
whether an employer will have complied
with the Code - for example, whether there
was a 'valid reason' for dismissal based on an
employee's conduct or capacity.
{ lawyers and paid agents from encouraging
~~
Unlawful dismissal
Unlawful terminations are those that are for
an unlawful reason such as, say, a temporary
absence by the employee because of illness
or injury. Unlike the WR Act, which allows
the Federal Commission to arbitrate whether
an alleged unlawful dismissal is harsh, unjust
or unreasonable,131 the FW Act only provides
for FWA to be able to 'deal with' a dispute
about whether a dismissal was for an unlawful
reason. 132 The exact nature and extent of this
power is unclear. A reverse onus of proof
applies in such applications. 133
A further difference between the WR Act
and the FW Act is that, unlike the Federal
Commission, FWA has the power to 'deal with'
applications that a person has been dismissed
in,134 or been the subject of, contravention
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26
of the 'general protections"35 prescribed in
the FW Act - for example, where the reason
for the dismissal, or injury in employment,
is because the person was involved in an
industrial association. 13G A reverse onus of
proof applies in such applications too. 137
Personal costs orders against private
sector lawyers
The FW Act anticipates the need to rein in
reprobate lawyers if they are not employees
of a party or a union representing a person
(private sector lawyers). In no less than three
separate provisions, the FW Act expressly
provides that FWA can make costs orders
against private sector lawyers (who generally
require 'permission' in the first place before
they can appear before FWA) 138 if they
encouraged their client to start or continue
a matter and it was reasonably apparent that
there was no reasonable prospect of success;
or if they caused costs to be incurred by
the other side because of an unreasonable
act or omission in connection with the
conduct or continuation of the matter. m In
relation to one of these provisions,'40 the
Explanatory Memorandum to the FW Bill
states as follows:
"These provisions are designed to deter
others to make speculative applications,
or make applications they know have no
reasonable prospects of success. "141
Intriguingly, there appears to
corresponding power to make costs orders
against lawyers, paid agents or employed
advocates (whether lawyers or not) of
unions or others. Inferentially, Parliament
must have thought that, whilst there was a
real problem that needed to be dealt with
concerning private sector lawyers, employed
advocates do not engage in the type of
mischief requiring personal costs orders to
be made against them. It is unclear what, if
any, research or consultation was undertaken
that demonstrated the need to legislate in
this fashion H1
Conclusion
WorkChoices beget the FW Act in that, like
the former, the latter relies heavily upon the
corporations' power. It does so, arguably, to an
even greater extent than did WorkChoices.
Ironically, this seems to be the main legacy
of the previous Liberal government's
experiment with WorkChoices. Its opponents
having failed in their famous challenge to
the constitutional validity of that law, 143
WorkChoices' constitutional foundations
have been enthusiastically built on by a Labor
government to create the FW Act.
Relyi ng on the corporations power, the FW Act
will probably see a marked re-involvement of,
and increased union presence and influence,
in Australian workplaces as unions emerge
from the industrial wilderness to which they
were confined by WorkChoices. 144 This will
primarily flow from a combination of broader
rights of entry for discussions with employees,
the default position of unions as bargaining
agents for employees in negotiations for
an EA, and the power of FWA to force
employers to bargain. From the point of
view of its makers, in this way, the FW Act
levels the playing field to restore a balance
disturbed by WorkChoices.
The label Fair Work to describe the law
that replaces WorkChoices reflects a
certain philosophy that may not be shared
by everyone. What is clear, however, is
be no that the FW Act regulates the employment
relationship between a very large number145
of constitutional corporations and their
employees in a very prescriptive and detailed
fashion. 146 In this respect, the name does
not disguise the fact that the FW Act is
very much like the WR Act (although it
requires a certain, arguably unusual, mindset
to characterise such detailed and complex
regulation as a 'rose' that 'smells so sweet').
As with WorkChoices, it is likely that many
aspects of the FW Act will require much
consideration, including by the courts, before
its operation is fully understood.
AUGUST 2009
Notes 27. Hotcopper Australia Pty Ltd v Saab (2002J 55. The FW Act, ss108-112.
82 WAIG 2020: the claim was for the issue 56. The FW Act, ss11 3-11 3A.
1. What's in a name? That which we calf a rose, By of;shares in a company promised under a
any other name would smell as sweet. William 57. The FW Act, ss114-116.
contract of employment. It failed because it
Shakespeare: Romeo and juliet, 1594, per was of a 'commercial' nature rather than it. 58. The FW Act, ss117-1 23.
Juliet. being an 'industrial matter'. 59. The FW Act, ss124-125.
2. Published by Vintage Books, 2006, p215. 28. See CWeo4a May Smith v Albany Esplanade Pty 60. The FW Act, 544(1).
3. The Workplace Relations Amendf)'i€!)J, . !..teft/a:The Esplanade Hotel 87 WAic 509. 61. The FW Act, 544(2).
(lNorkChoices) Act 2005 (WorkChoices). . 29. The WR Act, s1 6(2)(c). The FW Act, s27(lA).
62.
4. The Constitution, s51 (xx). 30. The FW Act, s27(1}. The Constitution, 551 (xxxv). A fi nding of
63.
5. See item 9 of schedule 1 of WorkChoices, which 31. The FW Act., s27(2)(0) dispute was the foundation of the exercise of
introduced s7C(1) of the Workplace Relations the jurisdiction of the Federal Commission;
32. Hotcopper Australia pry Ltd v Saab 81 WAIG
Act 1996 (the WR Act), which in turn was then see, for example, Australian Liquor, Hospitality
2704 at 2707.
renumbered as s16(1) of the WR Act. Miscellaneous Workers Union v Northern
33. The IR Act, ss29AA(3) and (4), and the
6. See the Federal Register of Legislative Territory Students Union and others Print
Industrial Relations (General) Regulations
Instruments (the FRLI), F2008L00959. The L41623
1997, regs 5 and 6: such a claim is subject to
Workplace Relations Amendment (Transition to 64. The finding of dispute was made pursuant to
a remuneration limit, subject to adjustment in
Forward with Fairness) Act 2008 (the TFF Act) the pre-WorkChoices WR Act, 5101: see, for
July each year, which is currendy $117, 500
itself only contains ss1-3, which commenced example, Australian Education Union v Minister
per annum.
on 20 March 200B. for Education of Victoria and others Print
34. The FW Act, s26(3).
7. Generally, see Part 3 of the TFF Act. M7768.
35. Clause 142 of the Explanatory Memorandum
8. The TFF Act, sl, which introduced 5326 of the 65. Such as state awards, made under the IR Act:
to the FW Bill refers to the Fair Work Act 1994 s37(1).
WRAct.
(SA), s14, as an example of a law that is 'saved'
9. The TFF Act, 52, which introduced ss3460 and 66. The fW Act, s143(5). The equivalent is the WR
by what is now the FW Act, s27(2)(c). However,
346E particularly of the WR Act. Act, 5543(4).
the Fair Work Act 1994 (SA) is also described in
10. See the FRLI, F2009L01818. the FW Act as a "general state industrial law". 67. The FW Act, 5143(6). The equivalent is the WR
11. The FW Act,s575(1). Section 14(a)(i) is not dissimilar to the IR Act, Act, 5543(5).

12, The FW Act, s681(1). s29(1 )(b)(ii) in that it confers jurisdic.tion on the 68. See the Award Modernisation Statement of the
Court to hear and determine claims for a sum Federal Commission [2009J AIRCFB 450 at [3J-
13. Namely, the FW Act, s541-43, 50-54, 58, 169-
due from an employer to an employee under [4J. Also, the WR Act, 5534.
281A, 300-327,332,333,334-572, 719-740
a contract of employment. 69. The FW Act, ss134 and 157.
and 769-800.
36. The Explanatory Memorandum to the FW Bill, 70. The FW Act, s139.
14. The FW Bill, clause 7(1); compare the
At r13, the Minister claims that about 100,000
Explanatory Memorandum to the FW Bill, 71. The WR Act, 55541 and 513.
previously exempted businesses, with around
r329. 72. The FW Act, 5562(1 )(b), 63(b), 139(1)(b) and
three million employees, will now be subject
1'5. The Explanatory Memorandum to the FW Bill, to the unfair dismissal system. (c).
r329. 73. The WRAct, s515(1)(e).
37. The FW Act, ss380, 382 and 383. And see the
16. The FW Act, ss44-49, 55-57A, 59-16B, 282- Fair Work Australia website at http://www.fwa. 74. The FW Act, 5144(1). Arguably, the equivalent
299,328-331, 333A and 741-768. gov.au/index.dm?pagename=dismissalsabout. provision was the WR Act, s521 (1), relating to
17. Generally, see the FW Act, Part 2-2. 38. It will be interesting to see what impact this 'facilitative provisions'.
18. See particularly the FW Act, ss45-47 and may have on the number of unfair dismissal 75. See the definition of 'objectionable term' in the
132-155. applications. FW Act, ss12 and 150.
19. The few Bill, clause 7(1); compare the 39. The Fair Work Australia Rules 2009, rule 14. 76. In The Explanatory Memorandum to the FW
Explanatory Memorandum to the FW Bill, 40. The FW Act, s397. Bill, r213, footnote 38, the Minister states that
r329. the high income threshold will be $100K for
41. The FW Act, 5399(1).
20. The Explanatory Memorandum to the FW Bill, full-time employees, indexed from 27 August
42. The WR Act, 5760. 2007, and adjusted annually in July each year
r329
43. The FW Act, s484. in line with annual growth in average weekly
21. The WR Act, s16(1).
44. The FW Act, s484(b). ordinary time earnings for a full-time adult
22. The FW Act, s26(1). employee.
The F~ Act, ss26(2)(a) and 26(3)(c). The
45. The WR Act, s760(b).
23. 77. The FW Act, s156.
equivalent is the WR Act, sl 6(1 )(a). This term 46. For instance, see the concerns of the employer
in Construction, Forestry, Mining and Energy 78. The WR Act, ss539, 544 and 545.
seems to mean the whole of a 'general state
industrial law', not just one or more provisions Union v BeC (Australia) Pty Ltd (200BI AIRC 79. The FW Act, s157(1).
of it. 55. 80. The Explanatory Memorandum to the FW Bill,
24. This term seems to mean the whole of an Act, 47. The WR Act, s772. r163.
not just a part thereof. ~ 48. The FW Act, see 5505. 81. The FW Act., s228
25. The FW Act, s26(2)(b). 49. The FW Act, s61. 82. The Explanatory Memorandum to the FW Bill,
26. The FW Act, ss26(2)(c}-(f). The equivalent is 50. The FW Act, ss62-64. r166 and clauses 651, 948 and 950. Also,
the WR Act, ss16(1 )(b}-(e). A 'law' as opposed see ss228(1)(a) (which requires attendance at
51. The FW Act, ss65-66.
to an 'Act' arguably signifies the difference bargaining meetings), nO(2}(b) and 231 of the
52. The FW Act, ss67-85. FWAc.t.
between the whole of an I'\ct' as opposed to a
provision(s) of one: see the Acts Interpretation 53. The FW Act, 5586-94. 83. The Industrial Relations Act 1988, sl 70QK. See
Act 1901, s12. 54. The FW Act, 5s95-107. Automotive, Food, Metals, Engineering Union

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AUGUST 2009 27
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of Australia v Asahi Australia Print L7818 for bargaining-related workplace determination') 137. The FW Act, 5361(1). Note that the reverse
a discussion on the principles of 'good faith or a 'modern' award that is expressed to cover onus of proof does not apply in relation to
bargaining' as they applied to s170QK, as well one or more named employers. applications for an interim injunction: the FW
as an example of how it figured in the context
108. The FW Act, ss310 et seq. in Division 2, Part Act, 5361(2).
of alleged 'pattern bargaining'.
2-8, Chapter 2.
84. Electrolux Home Products Pty Ltd v AWU 221 138. The FW Act, 5596(1). The FW Act, 5596(1),
109. The phrase 'transfer of employment' is a
CLR 309. which prescribes for. the making by the
curious one, given that it is generally accepted
85. The FW Act, sl72(a). President of FWA of 'procedural rules' that
that it is not possible to novate a contract of
86. The FW Act, s172(1)(b). For instance, query a employment. include the circumstances in which a lawyer
term imposing a requirement for a paid on-site may make an application or submission on
110. Minister for Employment and Workplace
union organiser.
Relations v Gribbles Radiology Pty Ltd and behalf of a party.
87. The FW Act, 5172(1 )(c). The Minister
another (2005) 222 CLR 194; PP Consultants 139. The FW Act, 55376(1), 401(l)(b) and 780(1),
anticipates this will happen: see the Explanatory
Pty Ltd v Finance Sector Union of Australia which are in addition to FWMs general power
Memorandum to the FW Bill, r146.
(2000) 201 CLR 648.
88. R v Portus; ex parte ANZ Banking Group Ltd to order costs against a party under s611 (2) of
(1972) 127 CLR 353; Re A/can Australia Ltd; 111. Presumably, Parliament thought that it would be
the FW Act if they made, or respond to, the
ex parte Federation of Industrial, Manufacturing commercially impractical for a new employer
application vexatiously or without reasonable
and Engineering Employees (1994) 181 CLR to wait longer than three months to engage
an ex-employee of the old employer, simply cause, or it should have been reasonably
96.
to avoid the consequences of a 'transfer of apparent that the application or the response
89. See R v Portus; ex parte ANZ Banking Group
Ltd, supra, per Menzies J at p;l60. business'. had no reasonable prospect of success.
90. See R v Portus; ex parte ANi Banking Group 112. The FW Act, 5311 (1). 140. The FW Act, 5376(1).
Ltd, supra, per Stephen J at p371. 113. The Corporations Act 2001, s50AAA. 141. The Explanatory Memorandum to the FW Bill,
91. See New South Wales v The Commonwealth 114. The FW Act, 5311 (3). Clause 1498.
[2006] HCA 52 (the WorkChoices case); 81
115. The FW Act, 5311(4). 142. The Explanatory Memorandum t.o the FW Bill,
ALJR 34; 231 AlR 1; 156 IR 1, per Gleeson Cj,
Gummow, Hayne, Heydon and Crennan JJ at 116. The FW Act, s311 (5). r19, where the Minister refers to consultation
[1981. 117. The FW Act, s22(5). with a number of bodies. However, none of
92. The WR Act, 5335(1). 118. The FW Act, 5522(7) and (8). them appear t.o have included representatives
93. The FW Act, 5173(1). 119. The FW Act, s314(1). It is not immediately of any law Society or Bar Association: see table
94. The FW Act, 5174(3). apparent whether the transferable instrument A1 to the Explanatory Memorandum.
95. The FW Act, ss186(2)(d) and 193(1). will cover existing employees, albeit they
. 143. See the WorkChoices case, footnote 91
96. See the government's submission to the are not transferring employees, if they are
above.
Federal Commission re 'Transitional Provisions re-deployed to perform transferring work
in Modern Awards', r3.37, dated 29 May 120. The WR Act, 5652(1). 144. For example, the headline on page 1 of The
2009, which can be located at the website Australian on 28 May 2009, which cried out:
121. The FW Act, 5390(1).
http://www.airc.gov.au/awardmod/databases/ "Resurgent unions ... ".
trans_prov/Submissions/DEEWR_trans_a lI.pdf 122. The FW Act, 55391 (1A)(a) and (b).
The FW Act, ss391flA)(c) and (d). 145. The Explanatory Memorandum to the FW Bill,
97. See Workplace Express, 1 June 2009 at;. 123.
2:10pm. " 124. r7, the Minister claims that about 85% of the
The WR Act, 5643(9).
98. The WR Act, 5420(4), and compare the FW 125. Australian employees will now be covered by
The WR Act, 5643(8).
Act, 519. 126. the federal workplace relations system.
The FW Act, s385(d).
99. The WR Act, 5496. 146. Despite the Minister's claims in the Explanatory
127. The FW Act, 5389(1).
100. The FW Act, 5418. Memorandum to the FW Bill, r7, that it
128. The FW Act, 5389(2).
101. For example, see Emwest Products Pty Ltd v contains 'simpler provisions' numbering 'only'
Automotive, Food, Metals, Engineering, Printing 129. The FW Act, ss385(c) and 388(2). The Code is
600 pages, as compared to the 1,500 pages of
& Kindred Industries Union [2001] FCA 1334, an attachment to the declaration of the Acting
Minister on 24 June 2009. the WR Act, this does not take into account
per Kenny J at [201-[21].
The FW Act, 5388(1) and FRlI F2009l02570: Schedules 1-10 of the WR Act, which numbers
102. The WR Act, 54(5). 130.
the Code is a legislative instrument. 558 pages, that will continue on as the Fair
103. The FW Act, 5593(1). A 'hearing' can be
distinguished from a 'conference': for example, 131. The WR Act, s659(2)(a), and the FW Act, Work (Registered Organisations) Act 2009;
see ss341(2)(a), 397, 399, 590(2)(d)(i) and 5772(1 lea). nor the pages in the WR Act concerned with
592. bodies such as the AIRC (55), the AFPC (19),
132. The FW Act, 5773.
104. The FW Act, 5591. the WA (15) and the WO (11), all of which
133. The FW Act, 5783(1). Note that the reverse
105. The FW Act, 5590(1). onus of proof does not apply in relation to have been replaced by FWA; nor the pages
106. The FW Act, 5421(3). applications for an interim injunction: the FW (34) relating to the matters referred by Victoria,
107. The FW Act, 5312: a 'transferable instrument' Act, 5783(2). now dealt with it in the states' Referrals Bill;
is an EA, a 'workplace determination' (as 134. The FW Act, ss365 and 372. or the pages comprising the TFF Act and the
to which, see the definition of 'workplace
135. Generally, the FW Act, Part 3-", and particularly TPCA Act, not to mention all the various
determination in 512: it could be a 'Iow-
paid workplace determination', an 'industrial ss334, 347 and 351 Regulations and Rules of FWA and the Courts
action-related workplace determination', or 'a 136. The FW Act, s347(b)(i). relating to the FW Act.

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28 AUG US T 2009