MANAGERS WHO disclose the identity of people on Australian Workplace Agreements (AWAs) could face a six-month jail sentence under the Federal Government’s new industrial relations laws, lawyers have claimed.
Section 83BS of the new legislation is designed to protect the privacy of workers on workplace contracts, but is “ridiculous” in its scope, according to Mara Ray, a partner with employment law firm Fisher Cartwright Berriman.
“It really is of major concern. At the moment, anyone who runs a business is no doubt discussing the implications of the proposed legislative changes, and in that context, discussing workplace contracts including AWAs,” she said. The new legislation says that “a person” could face a maximum penalty of six months imprisonment for disclosure of information obtained from a workplace agreement official identifying a person as being or having been a party to an AWA.
Basically the proposed legislation stipulates that a person commits an offence if they disclose information they either obtained in the course of their duties as a workplace agreement official, or they obtained “from” a workplace official who acquired the information in the course of performing their duties.
While Minister for Employment and Workplace Relations Kevin Andrews has said that the legislation is not intended to extend to people other than workplace agreement officials, this is in direct conflict with page 71 of the explanatory memorandum circulated with the authority of the Minister himself.
This provides an example of a social occasion where an ordinary person may be prosecuted by disclosing information regarding the identity of a friend on an AWA to a third party, if that information was given to him by a “workplace agreement official” as part of a social discourse - namely, having drinks after work.
In the light of this example, Ray said she cannot rationalise the Minister’s comments.
While many lawyers are waiting for the courts to interpret some parts of the legislation, she said there is little room for this to occur in relation to Section 83BS. However complicated the section may be, it leaves little room for a court to deal with any ambiguity.
“As it now stands, the courts have little scope to interpret it any differently,” she said, particularly in the light of the explanatory memorandum which would be relied on for the interpretation of this section in any event.
“Furthermore, it will be interesting to see how they propose to police any breaches of the section in the future, and whether any prosecutions are actually forthcoming.
“I find it incomprehensible, in legislation which is designed to encourage negotiation at the enterprise level, that communications relating to the existence of AWAs at a particular business, where you can identify the parties, can in fact lead to people being prosecuted.”
The Section has also rankled unions, claiming the Federal Government is trying to gag journalists and union advocates from drawing attention to unfair AWAs.
In the past, unions have highlighted unfair AWAs in the media, disclosing details such as the forced cashing in of sick pay, annual leave and penalty rates, according to Unions NSW secretary John Robertson.
“This is an outrageous attack on free speech and on the right of workers to raise genuine issues about their rights at work,” he said.
“This clause shows the contempt the Federal Government has for the Australian public.”