‘Fairness test’ doesn’t bring back ‘no disadvantage’

By Lenore Hankinson

Prime Minister John Howard's "fairness test" is an admission that the WorkChoices industrial relations laws have gone too far.

The fake 'fairness test' does not bring back the "no disadvantage test" that existed previously. The fake 'fairness test' does nothing to ensure that workers are not worse off than under their award -- penalty rates, overtime rates, public holiday loadings, rest breaks and cuts to workers' take home pay cannot be accurately valued in a deregulated labour market.

No worker can be sure of the exact value of the award condition they have traded off. As an example of this, employers cannot guarantee monetary compensation -- some are offering car spaces, pizzas or holiday vouchers. Individual workers do not have the resources to accurately assess the economic value of these entitlements across the economy, and hence their value in the workplace. Workplace Relations Minister Joe Hockey seems to think that the offer of a job is compensation enough.

An employer only has to show that it is in "difficult" circumstances and it can be exempted from these provisions. This falls in line with the vague terms used to justify sacking workers and re-employing them on Australian Workplace Agreements. The term used in the Cowra abattoir case was "operational reasons".

The fairness test will not apply to the 300,000 workers on Australian Workplace Agreements (3-5 per cent of the workforce), of whom three quarters will not get pay rises for the next five years.

Employers can seek exemption from the 'fairness test' due to the economic difficulties experienced by their location in rural or remote areas. Workers in these areas are already the most vulnerable, experiencing the results of droughts and regional decline.

The 'fairness test' will not apply to workers on incomes greater than $75,000 a year, affecting 1.2 million workers.

There are a number of award conditions exempted from the fairness test including ceremonial leave, leave to seek alternative employment, additional annual leave, paid parental leave and sick leave.

There are still no redundancy provisions.

Employers can exempt themselves from compensating vulnerable workers such as the young, unemployed, sole parents and disabled under a heading of 'other factors' such as the 'specific employment circumstances' or 'opportunities of the employee'. Hence, the unskilled or the difficult to employ cannot expect compensation for the loss of award conditions because employers can say they are merely doing them a favour by employing them.

In all, as Opposition deputy leader Julia Gillard has said, the fairness test is a public relations exercise in the face of a biting Your Rights at Work campaign. Joe Hockey has had to admit the legislation is not ready and there is uncertainty as to how it will operate. Prime Minister John Howard has said that in the absence of legislation employers should err on the side of caution and simply pay penalty rates and loadings.

Section 349 of the Workplace Relations act states: "An award has no effect in relation to an employee while a workplace agreement operates in relation to an employee." Hence, if this provision is to apply, the fairness test would be a once only test when an employee makes their first workplace agreement. All replacement agreements would be excluded from the test. Award stripping would happen in future agreements.

The Budget allocation of an extra $2.6 million for the Office of Employment Advocate is a seven per cent increase, hardly enough to be the grand overseer of agreement fairness. It was also revealed that the section is to be reduced by 57 people. Surely more staff would be needed to regulate the almost 1000 Australian Workplace Agreements signed each day.

This is just another example of an all tip and no iceberg public relations exercise being foisted on Australians by this Howard Government.

Lenore Hankinson is an Industrial Officer.

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