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Excerpt from this article first published in Human Resources Magazine, Issue 130 - 12 June 2007
A recent case of the Australian Industrial Relations Commission has confirmed that an AWA that is not witnessed cannot come into operation.
Mr Thompson was employed by Scotts since 1998. His employment was terminated on 31 October 2006. He immediately brought an unfair dismissal claim in the Commission.
Under the Workplace Relations Act 1996, an employee who earns more than the remuneration cap (currently $98,200 per annum) and is not employed under award derived conditions (which includes an AWA), cannot bring an unfair dismissal claim. Scotts argued that Mr Thompson could not bring an unfair dismissal claim because he earned more than $98,200 and was not employed under award derived conditions.
Mr Thompson argued that he was employed under award derived conditions because he signed an AWA during Scotts’ restructure in late 2005. However, his signing of the AWA was not witnessed and the AWA was not lodged with the Office of the Employment Advocate. Mr Thompson submitted that Scotts failed to advise him of the witnessing requirement and as the failure was on Scotts’ part, it could not invalidate the AWA.
The Commission said that in order for an AWA to be made, it needs to be approved in accordance with the legislation which requires both a signature and for that signature to be witnessed. Therefore the AWA which Mr Thompson had signed did not come into operation because it was not witnessed. As Mr Thompson was not employed under an AWA, nor any other award derived conditions and earned more than $98,200 he did not have access to unfair dismissal laws and his application was dismissed.
In order to make a valid AWA, the AWA must be approved in accordance with the procedures under the Workplace Relations Act 1996. This includes signing the AWA, witnessing the signing of the AWA and dating the AWA.
Nicole Gower
Senior Associate
Jean Wang
Lawyer
