Employer body wants flexibility clauses to be like AWAs

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Employer body wants flexibility clauses to be like AWAs

The use of flexibility clauses in modernised awards should not depend on majority support from the workforce, but only on the approval of the employees who are affected — just like AWAs — the AIRC has been told.

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The use of flexibility clauses in modernised awards should not depend on majority support from the workforce, but only on the approval of the employees who are affected - just like AWAs - the AIRC has been told.

And just like the early version of WorkChoices AWAs, the application of the flexibility clause should have a no-disadvantage test.

The Recruitment and Consulting Services Association (RCSA) submission on award modernisation also says that only existing employees would enter into flexibility agreements 'thereby removing the potential to make agreement with flexibility clauses a condition of employment' - as could be the case with AWAs.

It is difficult to see how this could work. Would potential employees not be told of the working conditions in the workplace until after employment?

Not detrimental

The RCSA calls for award flexibility clauses that can be formally altered by an agreement between employer and employee, as long as it is not detrimental to the employee on the whole.

'Any approval should only be required from the employees who are affected,' said Charles Cameron, Policy Adviser to the RCSA. 'As long as the legislative requirements are met, this should only need to be obtained on an individual basis.'

Cameron said that where the RCSA's proposal diverges from the old system for making individual contracts is that it provides for a model where only existing employees would enter into such agreements; thereby removing the potential to make agreement with flexibility clauses a condition of employment.

Other benefits

He said the RCSA acknowledges that there are difficulties in determining what 'not detrimental' means in practice, but pointed out it should include matters beyond remuneration and take into account other benefits provided to the employee.

Similarly, flexibility clauses should be designed to work with the National Employment Standards (NES), as outlined by the Federal
Government in recent months.

'If a component of the NES is expressed differently within the modern Award, to meet the needs of a particular industry sector, then it should still be deemed to meet the minimum standard,' Cameron said. 'This should also apply to agreements made under a flexibility clause, between an individual employee and their employer.'

The submission also advocates the possibility of on-hired employees receiving the same Award conditions as their on-site colleagues in certain circumstances.

Anomalies

'Where an employee is working alongside a client employee in substantially the same capacity, there should be an option to remove specific anomalies and reflect the principal terms and conditions of the worksite,' Cameron said.

The CEO of the RCSA, Julie Mills, said the overall goal is to create a system that fosters productivity while catering for individual circumstances.

'We advocate Awards being retained as a safety net but that the flexibility clause can be used to promote the efficient performance of work, while having regard for the needs of both parties in the employment relationship,' Mills said.

Work–life balance

'This will assist in encouraging economic growth, boosting workforce participation and providing work–life balance for Australians.'

Cameron said the Award Modernisation process must retain flexibility in order to meet the needs of both business and employees.

He said there are several compelling reasons why modern Awards need a degree of flexibility.

'Flexibility is a crucial tool for today's workforce that allows employers to meet the operational and efficiency needs of their
business, and employees to balance work and family responsibilities,' Cameron said.

'In the recruitment sector, this is particularly relevant to employers of on-hired employees, whose workforce is spread across a range of
industries and therefore subject to multiple awards.' 

'By its nature, the on-hire sector has a high turnover and needs to move quickly to place employees into suitable assignments; so a responsive and flexible Award framework is very important.'

 
Related

Ombudsman calls for accurate pay scales in new awards

Flexibility clauses should not hurt workers: Della Bosca
 

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