The following does not apply in Victoria because it has no state awards.
From 27 March 2006 State industrial awards that relate to constitutional corporations, such as trading corporations and financial corporations, are now deemed to be, in effect, federal awards.
The change from State awards to federal awards was made by amendments to the Workplace Relations Act 1996 (WR Act) introduced by the Workplace Relations Amendment (WorkChoices) Act 2005.
The legislation identifies the new arrangements as “notional agreement(s) preserving state awards” (NAPSA) for existing State awards.
Who is affected?
The notional agreements apply to employees covered by the original State award who are employed by constitutional corporations. This includes employees who would have been covered by the State award, even if they are employed after 27 March 2006.
The notional agreements are binding on employers, employer organisations and trade unions that were bound by the previous State award.
Do the terms and conditions of the previous awards continue?
Yes. The terms of the original State awards continue as terms of the notional agreement to the extent that they determine a term or condition of employment.
Certain provisions of State and Territory law which determined entitlements of employees prior to 27 March 2006 are also taken to be terms of the notional agreement.
These are called “preserved entitlements” and include an entitlement to:
- annual leave and annual leave loadings
- parental leave, including maternity leave and adoption leave
- personal/carer’s leave
- leave relating to bereavement
- ceremonial leave
- notice of termination
- redundancy pay
- loadings for working overtime or shift work
- penalty rates, including the rate of payment for work on a public holiday
- rest breaks.
How long will the notional agreements remain in effect?
The notional agreements are essentially transitional arrangements which have been introduced to assist the move from state industrial systems to the federal system.
The notional agreements will have effect until 31 December 2009 or until a workplace agreement or federal award comes into operation in relation to the affected workers.
What about disputes under notional agreements?
State industrial authorities, such as the various state industrial relations commissions, no longer have any power in relation to the new notional agreements. A NAPSA may be enforced as if it were a collective agreement in the federal system.
Disputes concerning the application of the new notional agreements that cannot be resolved at the workplace level may be referred to the alternative dispute resolution process (the ADRP). The ADRP may be conducted by a provider as agreed by the parties or approved by the Australian Industrial Relations Commission.
Disputes concerning compliance with a NAPSA may be dealt with either under the ADRP or by proceedings for a penalty and/or a remedy, including payment of entitlements. Such proceedings may be commenced in the following courts:
- the Federal Court
- the Federal Magistrates Court
- a District, County or Local Court
- a Magistrate’s court
- the Industrial Relations Court of South Australia
- Any other State or Territory court that is prescribed by the regulations.
Further information
You can download a printable version of this fact sheet here: Notional Agreements Preserving State Awards (PDF - 100KB)
The information contained in this fact sheet is correct as at 2 September 2008.
This material is for general information only. You should seek legal advice in relation to your particular circumstances. The Australian Government, its employees and agents do not accept any liability for action taken in reliance on this document and disclaim all liability arising from any error or omission. ABN 68 003 725 098
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