Glass houses & rock solid guarantees: a legal analysis of the Commonwealth 'no disadvantage' test

This thesis argues in favour of the present 'hybrid' Australian system of industrial relations, in which an individualistic enterprise bargaining regime is underpinned by centralised, collective protections in the form of the no disadvantage test, administered by the Australian Industrial Relations Commission, and with the possibility of trade union representation. Such hybrid is adjudged to be the best means of gaining a flexible labour system, which also effectively protects workers. That system is preferred to the alternatives, such as individual contracts, underpinned by statutory minimum conditions. Whilst the thesis argues in favour of the present system, it further advocates that the employee safeguards must be fortified. In this regard, the weakness of the no disadvantage test is not seen as its inherently discretionary nature, bill rather the fact that it requires the Commission to compare the proposed agreement to an award, which may be obsolete at the time of making that assessment. It is submitted the benchmark should be updated, for example, to reflect more recent agreements. It was mentioned that the no disadvantage test is a broad discretion administered by the Australian Industrial Relations Commission. As such, the test is codependent on the strength of that institution. It is argued that the role of the Commission in Australia's labour system should remain central Further, analysis of the Commission's application of the no disadvantage test is undertaken to demonstrate that the Commission applies the test so as to ensure it is a substantive protection for workers, whilst also allowing for innovative agreement making. As the no disadvantage test applies to both union and non-union collective agreements as well as individual Australian Workplace Agreements (AWAs), the thesis examines the position of trade unions under the Workplace Relations Act 1996 (so far as that relates to bargaining) and also the role of the Office of Employment Advocate (OEA) in applying the no disadvantage test. Yet again, the view is taken that the efficacy of the test is dependant on the supporting structures. While support is given for the retention of a non-union bargaining stream, the thesis argues in favour of the fortification of the position of responsible unions when attempting to negotiate union agreements. To that end, the thesis supports the interpretation of the freedom of association provisions of the Workplace Relations Act 1996 given by Justice North in Belandra over that of Justice Kenny in the BHP litigation. Further, it is argued that a good faith bargaining jurisdiction should be reintroduced for the Commission As to the use of AWAs (especially for people in blue collar positions), it is argued that the secrecy of the OEA makes the operation of the no disadvantage test hard to gauge, such that the OEA's jurisdiction should be handed to the Industrial Commission and the option of AWAs limited to only highly specialised employees. It is further submitted that the definition of 'duress' should be amended to prohibit the use of 'take it or leave it' AWAs. By so doing, employers AND employees will make the choice as to the appropriate vehicle to govern their relationship and the no disadvantage test would have more strength. Such an approach would also be more in keeping with the principal objects of the Workplace Relations Act 1996. It is significant to note that this thesis is grounded on two basic propositions. The first is that there is a power imbalance between worker and employer. The second is that such imbalance justifies intervention in the contract of employment, such as the role provided for the Industrial Commission by the no disadvantage test and scope for involvement of responsible unions. Such arguments are supported by over one hundred years of scholarly writing. In closing, it is important to note that this thesis deals with collective worker protections and not safeguards, like unfair dismissal laws. That is because the collective, systemic measures have the greatest influence over the day-to-day lives of employees and determine the 'say' they have in actually setting their standards of work. The thesis is also a legal, not socio-legal study. It is of enormous importance to note the legal strength of the systemic protections - it is from those systemic measures that all socio-legal results flow. Likewise, such legal analysis is the starting point for law reform