As members would be aware WorkChoices established a single national system for workplace relations for constitutional corporations. Federal awards made prior to 27 March 2006 that apply to sole traders, partnerships and other non-constitutional corporations (regarded as “excluded employers”) continue to operate under the federal system as transitional awards for a maximum of five years from 27 March 2007.
In December 2006, unions seeking to flow on the minimum rate increase decision of the Australian Industrial Relations Commission (AIRC) made application for hundreds of federal transitional awards to be varied for the wage increase including applications for the Retail and Wholesale Industry-Australian Capital Territory-Award 2000 and the Retail Wholesale and Distributive (NT) Award 2000. Subsequently the AIRC issued orders giving effect to these union applications to increase minimum safety net rates of pay.
However it seems highly unlikely such transitional awards exist at all in the federal system. This is because an “employer” under the legislation, as opposed to an “excluded employer”, subject to “pre-reform” awards includes:
“A person or entity (which may be an unincorporated club) that carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person or entity employs or usually employs, an individual in connection with the activity carried on in the industry.”
It therefore follows that it is most likely that all federal awards operating in the territories are in fact prereform awards despite the status of an employer as a constitutional corporation or not. Currently a full bench of the AIRC is hearing submissions about this matter in connection with last year’s union applications. It seems very likely that the AIRC will withdraw their orders varying the non-existent transitional award in the territories as such orders are likely misleading.
Members in the territories that are sole traders or partners or that otherwise do not meet the definition of “constitutional corporation” should call ARA Employee Relations for advice on the correct award coverage, pay rates and interaction of the awards with the Australian Fair Pay and Conditions Standard. Members will be kept updated of the outcome of this matter in the coming weeks, which will hopefully be resolved prior to any further increase being granted by the Australian Fair Pay Commission.
