Australian Workplace Agreement

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An Australian Workplace Agreement (AWA) is an individual written agreement on terms and conditions of employment between an employer and employee in Australia, under the Workplace Relations Act 1996. An AWA can override employment conditions in state or territory laws, except for occupational health and safety, workers’ compensation or training arrangements. An AWA must meet the Australian Fair Pay and Conditions Standard. Agreements must include a dispute resolution procedure, and may not include prohibited content. Agreements are for a maximum of five years; approved, promoted and registered by the Office of the Employment Advocate (OEA); operate to the exclusion of any award; and prohibit industrial action regarding details in the agreement for the life of the agreement.

Contents 1 Coverage 2 WorkChoices 3 Opposing views 4 See also 5 References 6 External links

[edit] Coverage

AWAs have achieved coverage of about 2.4 % of the workforce as of May 2004^[1]. Mining companies have pushed the agreements with some success, offering substantial increases in pay to workers who chose to sign an AWA.

According to OEA statistics, as at 31 December 2004, 1,410,900 persons were covered under Union Certified Agreements, 168,500 were covered under non-union Certified Agreements, and there were 421,800 Australian Workplace Agreements. By 31 December 2005 this had risen to 1,618,200 under Union Certified Agreements, 185,300 under non-union Certified Agreements, and 538,200 Australian Workplace Agreements^[2]. Australian Bureau of Statistics figures for March 2005 show that hourly wages of workers on AWAs were 2 % lower than the hourly wages of workers on registered collective agreements, mostly negotiated by unions.^[3] For women, AWAs paid 11 % less per hour than collective agreements.^[4]

"The most common methods of setting pay for all employees were registered collective agreement (38.3%), unregistered individual arrangement (31.2%) and award only (20.0%). Unregistered collective agreement (2.6%) and registered individual agreement (2.4%) were the least common methods of setting pay. The remaining 5.4% of employees were working proprietors of incorporated businesses."^[5]

In the federal public service the Department of Employment and Workplace Relations reported that as of December 31 2004, out of 124,500 public and parliamentary service permanent staff there were 11,085 AWAs (covering 1928 Senior Executive Service (SES), where AWAs are compulsory, and 9157 other employees).^[6] The rest of the permanent staff were covered, as at March 30 2005, by 101 certified agreements, of which 70 were union enterprise agreements and 31 non-union enterprise agreements.^[7]

[edit] WorkChoices

The Howard Government announced its next round of industrial relations reforms, called WorkChoices, during May 2005 which came into affect in March 2006. These included the stream-lining of certified agreement and Australian Workplace Agreement making; increasing the maximum agreement life from three years to five years; and discouragement of pattern bargaining and industry-wide industrial action, and removing the 'no disadvantage' test. These changes are actively opposed by the ACTU, ALP and the Australian labour movement generally.

AWAs under the new Act will now have to meet 5 minimum standards as contained in the Australian Fair Pay and Conditions Standard^[8]. These are:

• the minimum wage;
• 4 weeks annual leave, 5 weeks for shift workers (two weeks of which may be 'cashed out');
• 10 days personal leave per year;
• 38 hours per week to constitute normal hours; and
• unpaid parental leave.

AWAs will only have to pay above the minimum wage, to be set by the Australian Fair Pay Commission. This means that industrial awards have been side stepped in determining the minimum to be paid to employees in Australia. State Labor Governments argue this will reduce the wages of many low income people, particularly those that rely on Award rates of pay.^[9]

In the first month of operation after Workchoices was introduced from a sample of 4 per cent, or 250, of the total 6,263 AWAs lodged during April 2006, it was revealed by Peter McIlwain, head of the Office of the Employment Advocate that: 100% of AWAs removed at least one protected Award condition; 64% of AWAs have removed annual leave loadings; 63% of AWAs have not included penalty rates; 52% of AWAs have cut out penalty rates; 40% of AWAs have dropped gazetted public holidays; and 16% of AWAs, have remove all award conditions and only the Government's five minimum conditions are satisfied.^[10]

The Federal Court of Australia determined in the case of Arne Henry Bishop v Ropolo Services Pty Ltd^[11][12] in June 2006 that employers can withhold promotions from their staff unless they agree to sign Australian workplace agreements. Justice Rodney Madgwick said in his determination:

"Merely to remind an employee of his or her weak economic position or of the economic consequences of not entering into an AWA is, of itself, unlikely to constitute the application of duress. Advocacy of a projected contract such as an AWA may produce a sensation of pressure in the person to whom it is directed, but duress requires something more. In my view, the added component appears when something is done, threatened or proposed which would alter the operation of market forces adversely to the person subjected to the act, threat or proposal if the offered AWA is not accepted. "

[edit] Opposing views

The view of the union movement generally is that AWAs are an attempt to undermine the collective bargaining power of trade unions in the negotiation of pay and conditions of their members. Unions argue that the ordinary working person has no bargaining power by themselves to effectively negotiate an agreement with an employer, hence there is inherently unequal bargaining power for the contract. For exceptional individuals in a workplace, the union movement argues that common law contracts are sufficient. While Commercial law, and even common law provides for fairness and equality of bargaining power, AWAs are designed to entrench inequality between an employer and their workforce with regard to pay and conditions. The policy of the ACTU is that AWAs should be abolished and that the bargaining system should contain collective bargaining rights.^[13]

Most unions warn their members to be very cautious about signing AWAs, and if they do so, to appoint the union as their bargaining agent. For example, the Australian Services Union warns members:

"AWAs are about one thing: tipping the balance of power more firmly towards your employer and away from you."^[14]

In the Western Australian Parliament in May 2005, the Labor Minister for Consumer and Employment Protection stated his belief that there Australian Workplace Agreements are to be used to reduce wages and conditions of employment in Western Australia.^[15]

Despite such criticisms, the Government has maintained that AWAs are mutually beneficial for employers and employees, often promoting the view that 'flexibility' is paramount:

"AWAs give employers and employees flexibility in setting wages and conditions, and enable them to agree on arrangements that suit their workplaces and individual preferences. AWAs offer an employer and employees the opportunity to make an agreement that best suits the specific needs of individual employees. An existing employee cannot be forced to sign an AWA."^[16]

[edit] See also

• Australian Industrial Relations Commission
• Australian Council of Trade Unions
• Australian labour movement
• Australian industrial relations legislation, 2005
• Australian Fair Pay and Conditions Standard

[edit] References

• Workplace Relations Act (1996) via Austlii

[edit] External links

• Office of the Employment Advocate
• ACTU Assistant Secretary, Richard Marles on Individual Contracts
• Fair Go - NSW Government website on the changes