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News News Fairness test not enough to protect vulnerable employees: academic
The Federal Government's fairness test is insufficient to prevent employers using Work Choices to erode the conditions of employees in a weak bargaining position, according to a university report commissioned by the Victorian Government's Workplace Rights Advocate.

The report, Agreement-making under Work Choices: The impact of the legal framework on bargaining practices and outcomes, by Carolyn Sutherland from Monash University's Work and Employment Rights Research Centre, says changes are required to encourage genuine bargaining and ensure compliance with agreement-making rules.

The study, released today, reviews previously published data to identify 15 ways in which it says Work Choices' legal framework has shifted the balance of bargaining power away from employees, including through offering AWAs on a take-it-or-leave-it basis to new employees, using employer greenfields agreements to set a low base of conditions and exclude unions, providing incorrect information to employees, and withholding pay rises until employees enter into AWAs.

The report also said some employers are engaging in unlawful practices, targeting employees who refuse to sign AWAs by reducing their shifts, cutting benefits, or ending their employment.

"Even the existence of unlawful bargaining practices will not usually prevent an agreement being approved. Any legal remedy to address such tactics must be obtained through subsequent litigation in the courts," Sutherland says.

The widespread use of template collective agreements designed by IR consultants (including Enterprise Initiatives) in the retail and hospitality sectors "suggests that there is very little genuine bargaining taking place", resulting in reduced employee control over hours of work, rostering, location and job functions, the report said.

While offering extra protection for allowances, overtime, penalties, and leave loading, the fairness test failed to consider additional employee obligations including company policies, confidentiality requirements and the removal of redundancy and long service leave entitlements, it said.

Vulnerable employees also faced difficulties in challenging agreements that failed to comply with the APCS because they had to identify any inconsistency to the Workplace Ombudsman or start costly court action, the report said. "Such a framework inevitably deters employees from pursuing underpayment claims."

"The new Fairness Test is narrower in scope and provides fewer procedural protections than the former no disadvantage test," it said, particularly because "the majority of the protected award conditions relate to monetary benefits rather than employee rights to control in the workplace."

"The ‘overall effect' test also applies to multiple business agreements, suggesting that an agreement could pass the test even where employees in one of the affected businesses did not receive fair compensation - provided that the majority of employees across all the businesses to be covered by the agreement received fair compensation for the removal or modification of protected award conditions," the report said.

Victorian IR Minister Rob Hulls said in a statement that the report showed that the "Fairness Test does not redress the multiple ways in which Work Choices undermines the bargaining position of working families."

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