Fair Work (Transitional Provisions and Consequential Amendments) Regulations 2009

• Employers with pre-FW Act employment instruments: Particularly those who had employees covered by awards, AWAs, NAPSAs, certified agreements or collective agreements under the WR Act.
• Employees covered by transitional instruments: Whose terms and conditions during the transitional period were governed by a combination of FW Act provisions and continuing transitional instruments.
• Fair Work Commission: The body with jurisdiction to deal with transitional instrument matters including applications to terminate, vary or replace them.
• Fair Work Ombudsman: Responsible for compliance with transitional civil remedy provisions preserved by the Regulations.
• State-referred employers in Division 2B referring States: Part 3A governs the treatment of State award and agreement coverage for employers in States that referred their industrial relations powers to the Commonwealth after the initial WR Act repeal.
• Apprentice and trainee employers: Specifically affected by the NAPSA/ABTI regime, as in the All Trades Queensland case involving apprentices and trainees covered by transitional awards in the Queensland building industry.

Employee records (Part 2):

• Employers who had record obligations under Division 19.4 of the WR Regulations continue to be required to keep those records for the specified period (reg 2.03).
• On transfer of a business, the old employer must transfer employee records to the new employer; the new employer must keep those records as if it had made them (reg 2.04).

Compliance with transitional instruments:

• During the currency of any transitional instrument, employers and employees must comply with its terms.
• Contravention of a transitional civil remedy provision is actionable under FW Act enforcement provisions.

Modern award coverage:

• From the applicable termination date for each transitional instrument, the relevant modern award or enterprise agreement coverage applies.

Fair Work Commission:

• Has jurisdiction to approve, vary, and terminate transitional enterprise agreements and workplace agreements.
• May deal with disputes arising from transitional instruments.

Fair Work Ombudsman:

• Enforces transitional civil remedy provisions during their currency.

Regulations:

• The Governor-General may make regulations modifying the transitional framework to deal with any gaps or problems that emerge (as authorised by the enabling Act).

Contraventions of transitional civil remedy provisions are enforceable under the civil penalty provisions of the FW Act. The maximum penalties for civil remedy provision contraventions applicable at the time of each breach applied during the relevant transitional period.

Key transitional dates:

• 1 July 2009 (WR Act repeal day): FW Act commences; WR Act instruments begin transitional operation.
• 1 January 2010: Division 2B State referral takes effect for many purposes; certain State award instruments transition under Part 3A.
• 1 January 2014: The sunset date for most award-based transitional instruments under item 20 of Schedule 3 to the enabling Act, as interpreted in the All Trades Queensland litigation.
• Various dates for enterprise agreements: Specific transition timelines apply to pre-WR Act enterprise agreements and workplace agreements depending on their type and the date of the relevant industrial action.

The All Trades Queensland case ([2017] FCAFC 189) confirmed that the 1 January 2014 sunset date in item 20 of Schedule 3 applied to the NAPSAs in question, notwithstanding the operation of reg 3B.02 and item 16 of Schedule 5.

Fair Work Act 2009 (Cth): The primary statute to which the Regulations transition. All transitional instrument obligations must be read against the corresponding modern award, enterprise agreement or NES provisions under the FW Act.

Workplace Relations Act 1996 (Cth) (WR Act): The Act that the Regulations manage the transition from. The WR Act's awards, AWAs, certified agreements, and union collective agreements all had different transitional treatments.

Fair Work Regulations 2009 (FW Regulations): References in the Regulations to the FW Regulations reflect the ongoing regulatory complement to the FW Act.

National Employment Standards (NES): From the WR Act repeal day, the NES apply to all national system employees. The transitional instruments interact with and are modified by the NES during their transitional operation.

The sunset date controversy: The All Trades Queensland FCAFC case illustrates the potential for complex interactions between different sunset provisions in the enabling Act and the Regulations. Parties relying on transitional instruments must identify the specific instrument type and its applicable sunset provision.

NAPSA coverage after 1 January 2014: The FCAFC confirmed in All Trades Queensland that NAPSAs terminated on 1 January 2014 under item 20 of Schedule 3. Any employer or employee who believed NAPSA coverage continued after that date was relying on an incorrect interpretation.

Record-keeping obligations survive the transition: Part 2 record-keeping obligations for WR Act era records continue even after the primary employment instrument has been superseded. Employers must retain those records for the full retention period.

Transitional civil remedy provisions: Some obligations created by the Regulations are themselves civil remedy provisions enforceable under the FW Act. Breach of these obligations during the transitional period remains actionable even after the instruments have been superseded by modern awards or enterprise agreements.

Division 2B referral complexity: The Division 2B referring State provisions in Part 3A add a further layer of complexity for employers in States that referred their industrial relations powers after July 2009. The dates and conditions for referral affect which instruments apply and when.

NAPSA coverage for apprentices (All Trades Queensland): An apprentice employer in Queensland had employees covered by a NAPSA (in this case, a National Award Prescribing Standards for Apprentices in the building and automotive industries). The employer applied to the Fair Work Commission in 2016 for approval of a new enterprise agreement. The Commission had to determine whether the NAPSAs still covered the employees at the time of the enterprise agreement approval, which depended on whether those NAPSAs had been sunsetted by item 20 of Schedule 3. The FCAFC in All Trades Queensland [2017] FCAFC 189 confirmed the NAPSAs had terminated on 1 January 2014 by virtue of item 20 of Schedule 3 (notwithstanding item 16 of Schedule 5 as enacted by reg 3B.02 of these Regulations).

Employee record transfer on business acquisition: A company acquires a business on 30 October 2009 (after WR Act repeal day). The previous employer had an obligation under the former WR Regulations to keep certain employee records. Under reg 2.05, those records continue to be governed by the WR Regulations after the transfer date even though the WR Act has been repealed. The new employer must comply with those continuing record obligations and pass them on if it subsequently sells the business.

Transitional award during enterprise bargaining: An employer whose employees were covered by a transitional instrument (a pre-reform award continued under the transitional Act) engaged in enterprise bargaining during 2011. During the bargaining period, the transitional award continued to apply as the safety net. Once an enterprise agreement was approved, the transitional award's coverage was displaced for those employees. The enterprise agreement approval process was governed by the FW Act's requirements for agreement approval, while the transitional award provided the reference point for the "better off overall test."