Fair Work Commission could allow agreements which make some workers worse off

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The Fair Work Commission (FWC) would be allowed to disregard the “better off overall test” when considering enterprise agreements for businesses hit by COVID-19 under planned changes.

Industrial Relations Minister Christian Porter will unveil legislation on Wednesday designed to overhaul the nation’s workplace laws in a bid to stem job losses and grow employment during the pandemic-induced recession.

Mr Porter argues the “broken” enterprise bargaining system has been “slowly choked by increased technicality, complexity and regulation”.

He said the proposed changes would help save jobs by giving businesses in financial distress flexibility while they recover.

Under the current system, the Fair Work Commission applies the “better off overall test”, also referred to as BOOT, to assess employees’ conditions under a new agreement when compared to the relevant award, unless there are “exceptional circumstances”.

“The Government recognises the BOOT’s importance as a key safeguard for workers,” Mr Porter said.

“Given that many industries are still reeling from the impacts of the pandemic, it also makes good sense for the FWC to be able to consider agreements that don’t meet the BOOT if there is genuine agreement between all parties, and where doing so would be in the public interest.”

The Government wants to give the FWC the discretion in “limited circumstances” to approve an agreement that leaves some workers worse off if the business has been affected by COVID-19 and if it’s in the “public interest” to do so.

The commission would be required to take into account the views and circumstances of the employer and employees, and a two-year time limit would apply for such agreements.

A two-year time limit will apply for such agreements.

Mr Porter has not revealed the full details of the legislation but says other changes to enterprise agreements include:

  • Requiring the Fair Work Commission to process applications within 21 days of lodgement
  • Removing the requirement for the FWC to consider kinds of work that are not “reasonably foreseeable” when making considerations under the BOOT

Unions have vowed to campaign vigorously against the omnibus bill, which is set to be introduced to Parliament today.

Secretary of the Australian Council of Trade Unions Sally McManus said she was blindsided by the BOOT changes and described them as “dangerous and extreme”.

“These proposals were never raised during months of discussions with employers and the Government,” she said.

“The union movement will fight these proposals, which will leave working people worse off.

“When WorkChoices was introduced, employers rushed out to cut wages — the same will happen if this law passes.”

The Morrison Government previously announced it would seek to give employers in 12 awards the ability to offer part-time workers extra hours without paying overtime rates.

It would also move to criminalise deliberate and systematic wage theft by business, and for the first time apply a definition for “casual work“.

By political reporter Nour Haydar (Original ABC Article)