Howard's AWA 'fairness test' a smokescreen


The Howard government's so-called fairness test for all new workplace agreements (individual contracts and collective agreements) is destined to become law, with Labor Party support, before the end of June. The legislation, which purports to guarantee "fairness" to workers who trade off their entitlement to penalty rates, overtime pay and holiday leave loading, passed through the House of Representatives on May 29.

The "fairness test" announced by PM John Howard on May 7 now requires that all new agreements lodged with the Workplace Authority (the new name for the Office of Workplace Services) provide "fair" compensation for any trade off of conditions offered by the relevant award. The "fairness" or not of an agreement will be decided by 600 bureaucrats to be recruited by the Workplace Authority.

Howard argues the new provision restores the same guarantees that were incorporated in the "no general disadvantage" test that applied to all AWAs (Australian Workplace Agreements — individual contracts) signed before Work Choices came into effect. However, the new "fairness test" contains a number of exceptions.

So-called "special circumstances" allow bosses to continue to strip conditions from workers' agreements in cases where a company is in financial difficulty (to be judged by the bureaucrats) and the boss can cajole workers into accepting it (perhaps by threatening the sack for "operational reasons"). The "special circumstances" provision will also allow bosses who employ country workers or "disadvantaged" workers to strip conditions with impunity. Workers among the estimated 600,000 who signed AWAs before May 7 will not be saved by the test.

"Non-monetary compensation" — a car space, time off to pick up the kids, a gym membership — may now be considered sufficient compensation for a loss of penalty rates. But how the Workplace Authority might apply a monetary equivalent to such "benefits" remains a mystery.

The Labor Party has correctly described the "fairness test" as so full of holes and exceptions that it is meaningless. "[Howard's] laws have been 100%", Labor IR spokesperson Julia Gillard told the Australian on May 29. "After this bill passes this parliament they will be 99% unfair. Nothing in this bill fixes the core unfairness at the heart of Work Choices."

Yet Labor supported the bill without even trying to amend it.

The government also appended to the "fairness" legislation a clause making it illegal for unions to call for bosses to pay bargaining fees for nonmembers covered by a union-negotiated collective agreement. Citing "freedom of association" provisions, Labor joined the Coalition in voting for this also.

While condemning the inadequacies of the "fairness test", including that it does not compel bosses to offer any pay rise for the life of an agreement (to which all workers covered by an award are entitled), the Australian Council of Trade Unions said workers will understand why Labor voted for the legislation. "What Labor tactically do [sic] in this parliamentary debate is irrelevant to the bigger picture", ACTU president Sharan Burrow told the ABC on May 29. "The bigger picture is that you can't put a bandaid on Work Choices."

Burrow is correct that Work Choices cannot be reformed. But it is also true that it's been the success of the mass movement for workers' rights that has forced the Howard government to shift, even if only slightly, on Work Choices.

It remains a concern for many unionists, including ALP members, that Labor is moving so far away from its promise to "tear up" Howard's IR laws. Labor's support for a flawed "fairness" law follows its promise to retain the Australian Building and Construction Commission until 2010 and AWAs until 2013. Labor's alternative IR plan is looking increasingly like a slightly watered-down version of the Coalition's discredited Work Choices laws.