Rachel Siewert (WA, Australian Greens) Share this | Hansard source

I move Greens amendment (16) on sheet 5449:

(16)  Schedule 1, item 15, page 39 (after line 28), after clause 2, insert:

2A  Application of no-disadvantage test to AWAs

        (1)    An employee employed under an AWA or the bargaining agent of an employee employed under an AWA may apply to the Workplace Authority Director for a review of the employee’s AWA to determine whether it passes the no-disadvantage test in Division 5A.

        (2)    If the Workplace Authority Director determines that the AWA fails the no-disadvantage test, the employee may terminate the AWA by lodging with the Workplace Authority Director a declaration of termination which meets the requirements set out in subsection 395(3).

        (3)    The employee must take reasonable steps to ensure that written notice of the termination is given to the employer in relation to the AWA.

        (4)    An employer must not:

             (a)    dismiss an employee; or

             (b)    threaten to dismiss an employee; or

             (c)    treat an employee any less favourably;

if one of the reasons for the employer dismissing, threatening to dismiss or treating less favourably, the employee is that the employee sought a review of his or her AWA or that the employee terminated his or her AWA.

        (5)    Subsection (4) is a civil remedy provision.

Note 1:  A contravention of subsection (4) is enforceable by a workplace inspector—see Division 11 for provisions on enforcement.

Note 2:  Division 3 of Part 14 contains other provisions relevant to civil remedies.

This amendment is about AWAs being able to be terminated prior to the expiry date of the NDT. This amendment we believe goes to the heart of fairness and what is wrong with the AWA system and Work Choices. We had very clear evidence to the Senate committee that demonstrated that employees had been forced onto unfair AWAs. In fact, that had happened since the election. The Qantas Valet Parking example was provided to the committee. There was some fairly distressing evidence. We had one of the workers who had been offered an AWA since the election of the government—a government that came into government with a clear policy on these issues. We are also deeply concerned that many people will continue to stay on AWAs until at least their nominal expiry date. We do not support in principle retrospective application of new laws, and we understand that to merely cancel all AWAs now would create many difficulties. However, we do remain convinced that the Work Choices system was unfair. We know that the government believes that the Work Choices system was unfair and we believe very strongly that there are a number of AWAs out there that are unfair.

We believe that this mechanism allows employees to choose to get off unfair AWAs where they do not meet the no disadvantage test. We believe the opportunity should be open to employees to test whether their AWAs are unfair and to get them out of what are unfair work situations. It would also deal with issues where people had been forced, within the few short months between the election and now, onto AWAs which would not meet the no disadvantage test once this bill is passed. We strongly believe that this amendment goes to the heart of the unfairness of the past system. We are trying to reduce the unfairness that workers have been suffering due to the Work Choices system and regime.