Page 1095 - Week 04 - Wednesday, 16 March 2005
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of his colleagues know—is that the Office of the Employment Advocate does not advocate any particular type of employment contract.
The employment advocate applies the “no disadvantage test”, which is: taken as a whole, does the AWA coming before them that is the subject of this proposal make the employee better off, or ensure that the employee is not disadvantaged relative to the prevailing award conditions under the Australian Industrial Relations Commission?
If the employment advocate is satisfied that there is no disadvantage to the employee, the AWA is improved. The employment advocate might distinguish between voluntary and compulsory overtime or calculate hours by average, rather than consideration of actual hours worked, but he does not prefer or advocate one over the other. Indeed, this is an area that points to a fundamental flaw in the motion before the Assembly.
It would be quite misguided and unfair to present any resolution to the effect that, “This Assembly expresses its concern about the Office of the Employment Advocate in advocating any particular employment contract,” because the employment advocate does not do that in any case. He looks at all the provisions of the proposed agreement—not one or some—and must be satisfied that, overall, the employee is better off. It is the total result that counts, not one element of the AWA. That is the whole point of having these facilities to create flexibility—so that the total package of arrangements can be examined. I know this is not a theoretical test, it is in fact in practice—having dealt with the employment advocate’s office in a previous life and finding, from time to time, particular proposals that make the mark.
The employment advocate looks at all the provisions of the proposed agreement and must be satisfied overall that the employee is better off. It is the total result that counts, not just one element of the AWA. One provision, such as overtime arrangements or hours worked, in isolation does not mean anything. AWAs are strictly confidential and they are individual contracts. They are designed to meet the personal needs of employees, and their essential characteristic is one of flexibility. That is the whole point of having these contracts.
In the early stages of the employment agreements under the previous federal Labor government I had a meeting with Laurie Brereton, who was then industrial relations minister. He was complaining to me about the fact that people would not go into certified agreements, or whatever they were called at that time, in the hotels. I said, “The fact of the matter is, minister, that people don’t need us to go in and interfere with those arrangements.” I said, “People have flexibility.” It was not necessarily according to the law, but they had flexibility. Someone might have said, “I don’t want to work Friday but I will work Saturday,” and everybody was happy.
He said to me at the time, “My family have been in pubs; you’re right; you have a fairly flexible and loose arrangement.” I could not say that that was technically correct, but I could say that it worked and that each side of the equation was very happy with it. It did not need an employer association representative to come tromping in there telling them what the laws of the land were; and it certainly did not warrant a union official going in and telling them that they were going to create a formal process of bargaining between the parties which would result in a signed legal document. I think the AWAs go a long way towards preserving flexibility in the workplace. They keep things legal but
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