Court threat over AWAs

A HIGH Court challenge has been threatened against a number of registered Australian Workplace Agreements because unions believe they are leaving workers worse off than they would be under the award.

Under the Workplace Relations Act an employer can roster workers who have opted to work on weekends or outside normal hours to work those hours and pay them on the ordinary hourly rate prescribed in the AWA.

Union officials say this breaches the no-disadvantage test that is supposed to underpin the agreements.

AWAs have become extremely popular since the Western Australian Government abolished State workplace agreements.

Employment and Consumer Protection Minister John Kobelke said that if a High Court challenge was successful employers could be required to pay workers large amounts in back pay.

Liquor Hospitality and Miscellaneous Workers Union WA secretary David Kelly said he was in talks with the ACTU about mounting a High Court challenge.

“No application has been made to the High Court but we are looking at it,” he said.

“The act says people are supposed to be no worse off than the relevant award but what some employers are doing is using these AWAs to not pay employees, who volunteer for weekend work, the penalties they would be owed.”

Mr Kobelke raised the matter in parliament last year, saying that the Office of the Employment Advocate, the body responsible for registering AWAs, was arguing that the workers were opting to work for less.

“That is the same principle as saying that people can be slave labour if they choose to be,” he said. “In my view it is a total breach of Federal law. There is a real risk to employers who enter into this arrangement because they may find themselves in jeopardy at some future time when it is overturned by a court.”

Office of the Employment Advocate WA regional manager Rod Dewsbury said the provision was put into the act to give both workers and employers greater flexibility.

“The AWA may state that if an employee wishes to indicate his or her preferred hours of work, those times will be paid at the ‘agreed rate of pay’ which is less than the penalty rate specified by the relevant award,” he said.

Mr Dewsbury said choice of hours would be weighed against other award considerations when deciding whether the AWA met the no-disadvantage test.

“This does not mean the OEA considers the principle of choice to be sufficiently satisfied if the position is only advertised as a particular shift pattern such as nights or weekends only,” he said.

One example often given of employees who would benefit from the preferred hours arrangement are university students who often have to seek work outside of normal hours.

However, Mr Kelly said university students who worked outside normal hours for the same pay as those working normal hours were “taking the hours of other people”.

“It will lead to a situation where people are undercutting each other,” he said.