TUTORIAL QUESTION 10 – WEEK 11: AWA’S

QUESTION – Fully advise Raelene as to the likelihood of the Agreements being approved, and alternate steps she might have taken to achieve her aim of protecting the jobs of her employees.

  • In Australia, there are 2 streams of Enterprise Bargaining:

1) Certified Agreements (CA’s); and

2) Australian Workplace Agreements (AWA’s).

  • However, Awards are still the benchmark which CA’s and AWA’s are measured against  Parties under CA’s and AWA’s should suffer “no disadvantage” as compared to Award rights. The rationale for this is the protection of accepted community standards.
  • The ‘No-Disadvantage’ Test in s170XA WRA applies to all CA’s and AWA’s  “Employees covered by an agreement must not be disadvantaged in relation to their terms and conditions of employment”.
  • s170XA(1) provides that an agreement will disadvantage an employee where approval (of the agreement) results, on balance, in a reduction in the overall terms and conditions of employment under:

1) Relevant or designated awards; and

2) Any other law of the Cth, State or Territory, that the EA or AIRC considers relevant.

  • Where the employee is a non-award employee, the OEA or AIRC will designate an award to assess whether the “no disadvantage” test is met  However, here we have the Soft Toys Workers Award.
  • Application of the Global Test  “Involves a global approach to the comparison of the agreement with the benchmark awards and laws… The agreement should not fail the test merely because a particular condition of employment, or a particular kind of employment, is reduced, provided that, on balance, the overall package of terms and conditions is not reduced.”
  • Under s90, the WRA must take into account “public interest” when performing its functions.
  • As stated above, the Soft Toys Workers Award will be the most likely award that the proposed AWA’s are measured against to see if the “No Disadvantage” Test is passed.
  • The AWA’s provide for the same ordinary time rates of pay as the Award, but provide there will be no (penalty) overtime rates, and that the workers will work such hours as required until the CEO of the corporation who owns the factory is satisfied.
  • From the list of the 20 allowable award matters in s89A(2) WRA, the relevant ones are:

(b) Ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours;

(k) Loadings for working overtime or for casual or shift work;

(l) Penalty rates;

  • Applying the Global Test above, it appears that the proposed AWA’s do not simply reduce particular conditions/terms of employment, but instead, reduce the overall package of terms and conditions.
  • As such, the AWA’s fail the “no disadvantage” test when compared to the award rights under the Soft Toys Workers Award.