Transitional instruments

The Transition Act provides that all instruments that operated under the WR Act became ‘transitional instruments’ upon the repeal of that Act with effect from 1 July 2009. These instruments are then divided into two further categories:

• • award-based transitional instruments, including federal awards, notional agreements preserving state awards, and Pt 2B state reference transitional awards or common rules (which entered the federal system as a consequence of the referral of legislative powers by the states of New South Wales, Queensland, South Australia and Tasmania); and
• • agreement-based transitional instruments, including collective agreements, Australian workplace agreements, Individual Transitional Employment Agreements, workplace determinations, preserved state agreements (individual and collective), pre-2006 certified agreements, pre-1996 agreements, and s 170MX awards (made under the WR Act before the commencement of the Work Choices amendments in 2006).

Detailed provision concerning the transition of transitional instruments is set out in Sch 3 to the Transition Act (with Div 2B state instruments being dealt with in Sch 3A).

In broad terms, transitional instruments continue to have the same coverage as under the WR Act, and to be subject to the same rules as to content and interaction with other transitional instruments as was formerly the case. They can be enforced under Pt 4-1 of the FW Act, have no effect to the extent that they are detrimental to employees when compared to the National Employment Standards, and are displaced by any modern award or enterprise agreement that covers the same employees as the transitional instrument. Once displaced, a transitional instrument can never again cover the employees concerned.

Many of the same principles apply to the transition of agreement-based transitional instruments and award-based transitional instruments.

See Transitional instruments.