Mark Arbib (NSW, Australian Labor Party, Minister Assisting the Prime Minister for Government Service Delivery) Share this | Hansard source

This amendment is based in large part on a recommendation made by the majority of the Senate Standing Committee on Education, Employment and Workplace Relations in its report into the inquiry into the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. The government did not agree with that recommendation and accordingly will not be supporting this amendment. From 1 July until 31 December 2009, enterprise agreements will be assessed under the current ‘no disadvantage’ test, not the ‘better off overall’ test. This amendment would require Fair Work Australia to assess workplace instruments under different tests, depending on when they were made. This is simply not feasible from an administrative standpoint.

This amendment would also in effect require Fair Work Australia to retrospectively apply a test against instruments that, for the most part, have operated for some time. The government believes that it is simply not reasonable to shift the goalposts on employers and employees by having Fair Work Australia unilaterally terminate or vary agreements that were validly made between the parties under the laws in place at the time. It is true that under Work Choices employees were placed on unfair agreements. The Fair Work Act will consign those agreements to history. However, the government is mindful of the need to give certainty to all parties. The bill provides that once these agreements have reached their nominal expiry date, all of the options of the Fair Work system, including good faith bargaining, become available. As well, employees who are on substandard Work Choices agreements will have the full benefits of the National Employment Standards from 1 January 2010 as well as entitlement to be paid the relevant minimum wage for the employee’s classification. This will be the case whether or not the agreement has passed its nominal expiry date. These measures will go a significant way to mitigating the effects of those agreements.