Authors
Andrew Gray  
Partner

Murray Kellock  
Partner

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Murray Kellock  
Partner
T +61 3 9643 4172

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Sydney
Andrew Gray  
 

Perth
Robert Lilburne  
 

Canberra
Ian Johnson  
 

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The Federal Government announced further amendments to the Workplace Relations Regulations 2006 (Cth) on 22 September 2006.

The most significant change is that employers are provided with a further period of six months to comply with the WorkChoices record keeping requirements. For more detail, our Alert The new WorkChoices record keeping requirements: is your business ready? sets out those requirements.

The amendments also affect the rules relating to personal leave and annual leave under the Australian Fair Pay and Conditions Standard and the prohibited content rules.

The key aspects of the amendments are summarised below.

Record keeping

The transitional period for compliance with the WorkChoices record keeping requirements is extended to 26 March 2007.

Leave accrued before the application of the Australian Fair Pay and Conditions Standard

The amendments:

• provide that the Standard does not apply to personal leave or paid compassionate leave entitlements that accrued before the Standard applied to an employee. This regulation will cease to have effect at the end of a five year transitional period on 26 March 2011.
• clarify that the annual leave rules under the Standard do not apply to annual leave accrued before the Standard applied to an employee.

This means that rules regarding rates of payment, crediting, accrual, notice and evidentiary requirements do not apply to leave accrued before the Standard applied to an employee. Significantly, it also means that the limitations imposed by the Standard on the amount of annual and personal leave that may be cashed out by an employee do not apply to leave accrued before the Standard applied to an employee.

The point in time at which the Standard applied to an employee will depend on their industrial arrangements. For many employees, this will be 27 March 2006 which was the commencement date of the WorkChoices amendments. However, if an employee is subject to, say, a pre-reform certified agreement, a pre-reform AWA or a pre-reform State enterprise agreement, the Standard does not apply to the employee until that instrument is terminated or replaced.

Cashing out of leave entitlements

The amendments confirm that a workplace agreement that permits the cashing out of leave entitlements other than at the written election of an employee will breach the prohibited content rules.

Accruing annual leave in advance

The amendments confirm that accruing of annual leave in advance of service does not provide a less favourable outcome than the Standard.

Penalties for work absences due to illness, injury or emergency

Finally, new regulations have been introduced which restrict and/or prohibit the operation of provisions of agreements that penalise employees for:

• any absence due to illness, injury or emergency affecting the employee or a member of their immediate family or household; or
• failing to provide the required evidence or notice for personal/carer’s or compassionate leave.