As part of the introduction of the Fair Work system for Australia’s national workplace relations system ushered in by the Fair Work Act 2009 (Cth), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) provided for the continued existence and application of industrial instruments created under the Workplace Relations Act 1996 (Cth) or before the FW Act commenced.
As part of the introduction of the Fair Work system for Australia’s national workplace relations system ushered in by the Fair Work Act 2009 (Cth) (FW Act), the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) provided for the continued existence and application of industrial instruments created under the Workplace Relations Act 1996 (Cth) or before the FW Act commenced.
These “agreement based transitional instruments” and were created pre-2010 and included certified agreements, collective agreements and Australian Workplace Agreements (AWAs) and have been referred to as “zombie” agreements. While over time most of these agreements had ceased to operate because new enterprise agreements were negotiated or because they were terminated by the Fair Work Commission (FWC), there was still a significant number which continued to operate, raising concern that affected employees were receiving less beneficial terms and conditions compared to the applicable modern award.
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) passed by the Federal Government last year amended the Transitional Act so that these zombie agreements would automatically terminate by 7 December 2023, unless an application was made to the FWC to have them continue to operate.
The FWC has released an interactive checklist to assist employers to check whether they or their employees are covered by a zombie agreement which continues to operate. This interactive checklist can be found here.
Employers who are unsure if they are covered by a zombie agreement which continues to be in operation should use the checklist or to reach out to us at Workplace Law.
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