Steven Ciobo (Moncrieff, Liberal Party, Minister for Trade, Tourism and Investment) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and seek leave to move government amendments (1) to (3) on sheet MB113 and the amendment (1) on sheet MB123 as circulated together.

Leave granted.

I move government amendments (1) to (3) of sheet MB113 and (1) of sheet MB123 together as circulated:

(1) Schedule 4, item 1, page 16 (after line 20), after the definition of Schedule1 commencement day in clause 25 of Schedule 1, insert:

Schedule 2 commencement day means the day on which Schedule 2 to the amending Act commences.

(2) Schedule 4, item 1, page 17 (after line 27), at the end of clause 26 of Schedule 1, add:

Common issues

(3) Schedule 4, item 1, page 18 (lines 12 to 17), omit clause 28 of Schedule 1, substitute:

28 Application of amendments—when employees have genuinely agreed to an enterprise agreement

(1) The amendments of section 188 of this Act made by Schedule 2 to the amending Act apply in relation to an application made under section 185 of this Act for approval of an enterprise agreement if the application is made:

(a) on or after the Schedule 2 commencement day; or

(b) before the Schedule 2 commencement day, if circumstances covered by subclause (2) apply.

(2) The circumstances covered by this subclause are:

(a) on or before the Schedule 2 commencement day, the FWC had neither approved, nor refused to approve, the enterprise agreement; or

(b) before the Schedule 2 commencement day:

  (i) the FWC approved, or refused to approve, the enterprise agreement; and

  (ii) an application was made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement; and

  (iii) the FWC had not yet made a final decision on the appeal; or

(c) all of the following apply:

  (i) within 21 days before the Schedule 2 commencement day, the FWC approved, or refused to approve, the enterprise agreement;

  (ii) immediately before the Schedule 2 commencement day, an application had not been made under section 604 for an appeal against the decision to approve, or refuse to approve, the enterprise agreement;

  (iii) within 21 days after the FWC approved, or refused to approve, the enterprise agreement, an application is made under section 604 for an appeal against that decision.

(1) Schedule 2, item 2, page 6 (line 18), at the end of paragraph 188(2) (b), add ", in relation to the requirements mentioned in paragraph (1) (a) or (b) or the requirements of sections 173 and 174".

Question agreed to.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) together as circulated in my name:

(1) Clause 2, page 2 (table item 3, column headed "Provisions"), omit "2, 3 and 4", substitute "2, 3, 3A and 4".

(2) Page 15 (after line 8), after Schedule 3, insert:

Schedule 3A—Protecting take -home pay

Fair Work Act 2009

1 Section 12 (definition of reduction in take -home pay)

Repeal the definition, substitute:

reduction in take -home pay:

(a) in relation to the cessation of copied State awards—see subsection 768BR(3); and

(b) in relation to the variation of modern awards—see subsection 135A(5).

2 Section 12 (definition of take -home pay)

Repeal the definition, substitute:

take -home pay:

(a) in relation to the cessation of copied State awards—see subsection 768BR(2); and

(b) in relation to the variation of modern awards—see subsection 135A(4).

3 At the end of Division 2 of Part 2 -3

Add:

135A Protecting take -home pay

Object of this section

(1) The object of this section is to ensure that no employee's, or prospective employee's, take-home pay is reduced as a result of a variation of a modern award.

FWC cannot reduce take -home pay

(2) A modern award cannot be varied in a way that would, or would be likely to, reduce the take-home pay of any employee covered by the award.

Determinations reducing take -home pay of no effect

(3) A determination of the FWC made on or after 22 February 2017 that would, or would be likely to, have the effect of reducing the take-home pay of any employee covered by a modern award is of no effect.

Definition of take -home pay

(4) The take-home pay of an employee covered by a modern award is the pay the employee actually receives, or would receive if increases in the modern award minimum wage were included in the employee's pay:

(a) including wages and incentive-based payments, and additional amounts such as allowances and overtime; but

(b) disregarding the effect of any deductions that are made as permitted by section 324.

Note: Deductions permitted by section 324 may (for example) include deductions under salary sacrificing arrangements.

Definition of reduction in take -home pay

(5) An employee covered by a modern award suffers a reduction in take-home pay through a variation of the award if the amount of the employee's take-home pay for working particular hours or for a particular quantity of work would be less after the variation than it would have been before.

This bill goes to a series of matters, but the amendments moved by Labor will actually improve this bill because it will respond to the real dangers of people losing money on Sunday week. We are going to see up to 700,000 people lose money as a result of the decision by the Fair Work Commission to cut wages for hospitality and retail workers. We are going to see that happen if we, the parliament, do not enact legislation to prevent that from happening.

This amendment, of course, is similar to the efforts by the opposition to remedy this problem—remedy and rectify a decision of the commission. Therefore, these amendments are very significant indeed. They are significant because it will stop those workers losing real income as a result of the decision of the commission. This is at a time, of course, when the government seeks to increase taxes on those same workers who actually receive less than $87,000 a year. So it is an important amendment. It is something that every member in this place should support because of the importance of the amendments to this bill.

I might add, it is similar to a bill that was passed in the Senate on 30 March and yet has not passed this place. These are very important amendments. We call upon the parliament to support them. If the government supports the opposition amendments, as circulated, then we will see those workers who will be adversely affected not affected as a result of these changes to this bill.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Mr Speaker, I would seek your guidance with respect to the amendments as circulated by the member for Gorton, which appear to be in relation to penalty rates and take-home pay. In fact, the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 does not attach itself, impinge upon or have any bearing on penalty rates whatsoever. Therefore, as a substantive amendment to the bill, the amendments should not be ruled in order, and really is an attempt by the opposition to put a private members' bill, which they already have before the parliament, into a substantive bill in the House on another matter.

Tony Smith (Speaker) Share this | Link to this | Hansard source

I will hear from the member for Gorton.

I will hear from the member for Gorton.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

This is an amendment to the Fair Work Act and, in particular, it is to do with award modernisation. I reject the reasoning of the Leader of the House because this is an amendment to the Fair Work Act and, in particular, it goes to the award modernisation mechanisms within the Fair Work Act. This is about whether we will have constant reviews of the awards. Indeed, the penalty rates decision arose out of that process. In fact, the decision of the Fair Work Commission in relation to penalty rates arose precisely out of the provisions that are referred to in this bill. For that reason, it is entirely relevant that amendments are made to this bill in relation to penalty rates.

Tony Smith (Speaker) Share this | Link to this | Hansard source

I am happy to hear from the Leader of the House again on the subject. I am familiarising myself with the amendments.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Transparently, the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 is a substantial amendment of its own to the Fair Work Act. The amendments circulated by the member for Gorton are basically a repeat of his private member's bill before the House, which has no bearing on this bill. What the opposition is trying to do is get around the requirement for them to have 76 votes—an absolute majority—in order to have their private member's bill dealt with. Bills of the government that are there on different subjects should not be used to try and get around the standing orders, which require an absolute majority for a suspension of standing orders in order to deal with private member's business. The same pertains to the member for Melbourne's amendment when he moves his.

Tony Smith (Speaker) Share this | Link to this | Hansard source

I have listened to the Leader of the House and to the member for Gorton and, having just come back into the chair, obviously examined the bill and the amendments that are before the House. The Leader of the House makes the point that the shadow minister is seeking to essentially conduct private member's business during amendments on the bill. I understand the point, absolutely, that he is trying to make. There have been some private member's bills moved on this motion. I fact, I think even the member for Gorton has moved one such bill. The issue here is whether the amendments that are being moved relate to the subject matter of the bill that is before the house, not really whether the amendments themselves are very similar to a private member's bill. The member for Gorton is not seeking to bring on his private member's bill. I hope you will not mind me saying that he is clearly duplicating the intent of that, but he is doing it by way of an amendment. So what this really turns on is the bill itself, the short title of which is the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017; a Bill for an Act to amend the Fair Work Act 2009 and for related purposes.

I think the amendment is in order on that basis, because it is not at odds with the title of the bill and there certainly are lots of scenarios where there are other measures and related purposes where there are amendments provided on that on that subject matter. It is not seeking to amend another act. I think, on that basis, the amendments are in order and I need to allow debate to continue on them. We are at the point where the member for Gorton has spoken.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

Given that there has been some procedural discussion, I would simply say, in terms of the amendments, that, if these amendments are carried, the pay cut can be stopped. It is as simple as that.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Jane Prentice (Ryan, Liberal Party, Assistant Minister for Social Services and Disability Services) Share this | Link to this | Hansard source

Clearly these amendments are about the recent decision by the Fair Work Commission. We only need to look at the form on the other side of the House. They and their union bosses have done deals with the big end of town. They said at the time that they were prepared to abide by this decision. The Leader of the Opposition actually encouraged the Fair Work Commission to address the issue of penalty rates. He did not say, 'Address the issue and reduce them,' or 'Address the issue and increase them.' Who does that? He said, 'Address this issue.'

So clearly the Labor Party again are doing this on instructions from their union bosses. They are doing this to play politics. They are not really interested in the little worker. The big end of town, the people like Woolworths and Coles who have employees, are already bound like issues like this, but these are the workers, the small businesses who want to stay open in competition with the big guys. The Labor Party are penalising the mums and dads, the small business owners, the backbone of the economy in Australia. I urge everyone to vote against these amendments.

Scott Buchholz (Wright, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the amendments being put forward by the member for Gorton to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017. It is a broad church we have in the Liberal Party. The vast majority of the party, including me, is made up of small business owners. I had a payroll of in excess of 105 people. I was subjected to penalty rates. In their place, they work. The bill before the House speaks to trying to find a balance in relation to penalty rates on weekends. I believe the government has. We have looked at the double-time rate for Sunday and reduced that to the same penalty rate as for Saturday—time and a half. To come to this place and say that there are going to be 40 per cent cuts just does not stack up mathematically.

We went to the last election saying that we supported jobs and growth. In order to create those jobs, we need to give business the opportunity to be able to hire people on a weekend. We need to enthuse and encourage those businesses that make a commercial decision not to open on the weekends because they just cannot afford it. It is not across all aspects. You would have seen today marching and protests in the street by the CFMEU, stating that they were protecting the right to penalty rates. This is the hospitality sector. This is the straight economics of a mum-and-dad coffee shop not being able to afford to open on a Sunday to trade because the cost of employing staff is subeconomic and they cannot turn a dollar.

The amendment put forward by the honourable member for Gorton speaks in relation to the succession of copied state awards. Proposed section 135A, Protecting take-home pay, says:

The object of this section is to ensure that no employee's, or prospective employee's, take-home pay is reduced as a result of a variation of a modern award.

There are some thoughts around that space. The argument that is put forward by the other side is that, if someone who does not work during the week has their penalties traded away, and the only way that they can pick that up is by working on the weekends, should they be entitled to that double rate of pay and are they actually worse off?

I approach this from a different angle, from the angle of creating greater employment opportunities through the business sector, through the hospitality sector—the coffee shops. Those who work for McDonald's or one of the other multinational fast food chains would be working on much less than the award, because those rates have been already negotiated wholeheartedly through award bargaining processes.

The amendments also speak in relation to the FWC not reducing take-home pay and a modern award not being varied in a way that would or would be likely to reduce the take-home pay of an employee covered by that award. The member for Gorton has made some honourable contributions in this debate, but it is important to get these other remaining points out with the time that is remaining to me. On determinations and reducing take-home pay, the bill says:

A determination of the FWC made on or after 22 February 2017 that would, or would be likely to, have the effect of reducing the take-home pay of any employee covered by a modern award is of no effect.

On the definition of take-home pay, it says:

The take-home pay of an employee covered by a modern award is the pay the employee actually receives, or would receive if increases in the modern award minimum wage were included in the employee’s pay:

As a government we will seek to oppose the amendments put forward by the honourable member for Gorton. We will oppose the amendments for the reason that we have only just seen them and there is a bill before the House and we support that bill.

Keith Pitt (Hinkler, National Party, Assistant Minister for Trade, Tourism and Investment) Share this | Link to this | Hansard source

Thank you for the unexpected opportunity, Mr Speaker. We are of course here because of another Labor stunt. We are here to talk about exactly what we want to talk about—that is, delivering for the people we represent in our area. As the member for Hinkler, I have to tell you that we recognise that the Fair Work Commission is independent. That is what the businesses in my electorate say to me. It is either independent or it is not. So I say to those opposite, given that in government Labor appointed the commissioners who made the decision: do you back the people you put in place? That is the question for them. Clearly, they do not trust their own appointments.

But we really need to look at the absolute heart of this matter, and that is whether the small businesses in my electorate and other electorates around this country can actually afford to open and employ local people. When we look at the comparisons, it is pretty straightforward. A mum and dad small business, if they are open, they are doing this work with their family and, if they are not, I would suggest that there is the potential that they are doing the wrong thing and they are taking cash and splitting cash amongst the people who come in. I think that is fundamentally wrong and they should not be put in that position. The reason for that is pretty straightforward: they are out there competing with big business—big business who have done deals—and there are very simple examples. If we look at a comparison of a coffee shop in my electorate, they are out there competing with McDonald's. The difference between them and McDonald's is some $8 an hour on a Sunday. Those on this side of the House who have actually been in small business know the worry experienced about having to pay the rates and their wages every single payday. I know that it is has kept me awake of a night time on many occasions. I had a very simple view in business: we pay our people first, our bills second and ourselves last. I think that is a great concept to take into business. It is the way to ensure that you have longevity.

But we are here talking about the amendments from those opposite. We want those mum and dad businesses to be in operation on a Sunday, out there providing their services, particularly to tourists in this country. As the Assistant Minister for Trade, Tourism and Investment, I can say that tourism is the absolute booming, shining star of our economy, along with agriculture. We are going incredibly well in tourism, but we need to provide the services that tourists require—

Mr Brendan O'Connor interjecting—

I hear an interjection about the exchange rate—and I acknowledge that. The exchange rate of course influences whether people come here. But they absolutely will not come to this country if the services they come to see and the services they expect to be provided, regardless of the day of the week, are not open. In my electorate, where the unemployment level is unacceptably high, we need to be able to provide more opportunities, particularly for our youth. I have a youth unemployment rate of some 24 per cent. That is unacceptable to me, it is unacceptable to the people I represent and, as a parent, I can tell you that it is unacceptable to most parents in my electorate. If there is an opportunity here to ensure that these businesses are open and that they are providing employment opportunities for the youth in our region, it absolutely should be supported.

We intend to make sure that happens. As I have stated, the Fair Work Commission is independent. They have made an independent decision which, in my view, is in the best interests of those people trying to be open and competing with those who have done big deals with big unions to ensure that they are open. To be absolutely competitive with McDonald's or KFC they need to be paying rates which are close to or equivalent to what their competitors are paying. That is the nature of business.

Our tourism numbers are going up and we need to ensure that our businesses are open. In fact, there are some substantial improvements around our tourism numbers—double-digit growth from countries like China, Japan, the United States and others. So we want to build the economy. To do that, we need to bring in more tourists and, of course, more investment.

Can I just say, as an aside, that agriculture in recent days has announced a record production—some $62 billion. That has never happened before at the farm gate. I congratulate our producers and our small businesses, who are out there doing the hard work. Congratulations to them on record production for agriculture in this country at the farm gate. That, of course, means an increase in exports and an increase in money into our economy. It means that all our agricultural producers are going absolutely incredibly well.

In my electorate, a thing that we consider to be important is that businesses are open; a thing that we consider to be important is the business of employing local people; and a thing that we consider to be important is that they are actually getting paid. There is a fundamental of mathematics, and it is this: two times nothing is still nothing. If you are not open on a Sunday then you are not employed. We want to ensure that those people have those opportunities right now in these businesses around hospitality, pharmacy and others.

I have a tourism based electorate. Our economy relies on it and we require those businesses to be open and employing local people.

Trevor Evans (Brisbane, Liberal Party) Share this | Link to this | Hansard source

I reject these amendments that have been proposed by the member for Gorton to the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017. This is actually a topic where I have some experience. For four years before coming to this place, I was the CEO of the National Retail Association. It participated strongly in some of those previous four-yearly reviews.

I have to say that, fundamentally, these amendments that we are considering right now are really about the opposition—the Labor Party—backflipping on their previously strongly-held position that there should be an independent umpire which ascertains these key matters. Or should this be, ultimately, a decision for this parliament? That really comes down to a question like this on the details: do we here in the parliament think that we have the skills, the knowledge and the expertise to decide, for instance, that in the General Retail Industry Award or in the Fast Food Industry Award or in the Hair and Beauty Industry Award a particular person working at a particular level gets, say, $19.60 or $21.30 or some other amount at a key hour of the day in standard work hours? What should the loading be, specifically, once they have worked a full shift? What should it look like when they are doing some overtime? What uniform allowances might apply? What should the different loadings be if they work on, say, a Saturday, Sunday or a public holiday?

This is complicated stuff, and it is for that reason that these decisions were put into the hands of an independent umpire and independent expert by the opposition so many years ago. I do worry strongly about putting these sorts of decisions back into the hands of politicians, when I consider some of the skill sets, experiences and lack of diversity that exists in this place—particularly on the opposite side of the chamber. It is really important to have an independent umpire for matters like this, just as interest rate decisions, many decades ago, were taken out of the hands of this parliament and put into the hands of the independent experts of the Reserve Bank of Australia. That was done specifically to remove any suggestion of political interference. Decisions about employment awards and conditions fall into the same category. They are far too important to have any suggestion of political interference. It is done this way to ensure that outcomes not only are not political but are evidence based.

The decision that those opposite are currently railing against was a decision where the Fair Work Commission took months—years, in fact—studying all of the evidence and hearing from thousands upon thousands of submissions, both written and verbal. They cross-examined witnesses. They considered expert reports that were commissioned by various parties. They carefully considered the views of both unions and employer organisations, along with many experts, to come up with that decision, and on balance they decided that, when they weighed up the competing interests, it was of net benefit to workers and to the economy as a whole to reduce penalty rates in four key awards, in exchange for the huge gains in employment that would be seen in those sectors. So, effectively, they performed the very difficult task of balancing the competing interests of existing workers in the workforce with those currently outside the workforce, the 400,000 or 500,000 unemployed people in this country who are looking for work and want to get a toehold in the job market and certainly deserve the dignity that they would be afforded if they could get such a job.

Julian Leeser (Berowra, Liberal Party) Share this | Link to this | Hansard source

Mr Speaker, I rise to talk on—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Berowra will resume his seat. The Leader of the House.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I thank the member for Berowra for his willingness to speak—one of the best speeches he has given, dare I say! I move:

That the question be now put.

Question agreed to.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Gorton be agreed to.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The Manager of Opposition Business briefly on indulgence.

Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Finance) Share this | Link to this | Hansard source

I have simply been asked to report to the House that two of the Independents entered into a pairing arrangement because one of them was unable to be here for personal reasons. The member for Indi had intended to vote with the government and the member for Denison had intended to vote with the opposition. They asked me to report that to the House.

Mr Fitzgibbon interjecting—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Hunter is warned. I am just getting some attention!

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 2, as circulated in my name, together:

(1) Clause 2, page 2 (table item 3, column headed "Provisions"), omit "3 and 4", substitute "3, 4 and 5".

[protecting take -home pay for all workers]

(2) Page 18 (after line 23), at the end of the Bill, add:

Schedule 5—Protecting take -home pay for all workers

Fair Work Act 2009

1 At the end of Division 2 of Part 2 -3

Add:

135A Protecting penalty rates

(1) A penalty rate in a modern award cannot be varied to make the penalty rate lower than that in force under the award on 30 June 2017.

(2) A determination of the FWC made on or after 22 February 2017 that would reduce a penalty rate in a modern award so that the penalty rate would be lower than that in force under the award on 30 June 2017 has no effect.

2 At the end of section 193

Add:

Effect of removing or reducing penalty rates—award covered employees

(8) Despite anything else in this section, an enterprise agreement that is not a greenfields agreement does not pass the better off overall test under this section if:

(a) a penalty rate under the relevant modern award for an award covered employee, or a prospective award covered employee, is removed or reduced under the agreement; and

(b) because the employee usually works, or will usually work, on a day in relation to which a penalty rate is payable under the relevant modern award, the removal or reduction in the penalty rate disproportionately affects the employee as compared with employees who do not usually work on that day.

Effect of removing or reducing penalty rates—prospective award covered employees

(9) Despite anything else in this section, a greenfields agreement does not pass the better off overall test under this section if:

(a) a penalty rate under the relevant modern award for a prospective award covered employee is removed or reduced under the agreement; and

(b) because the employee will usually work on a day in relation to which a penalty rate is payable under the relevant modern award, the removal or reduction in the penalty rate will disproportionately affect the employee as compared with employees who will not usually work on that day.

3 Application of item 2

The amendment made by item 2 of this Schedule applies in relation to enterprise agreements made on or after the commencement of the item.

If these amendments are enacted and change this bill, it will ensure that those workers will not lose real income on 1 July or, indeed, the day following—the Sunday. That will not happen. This will remedy and rectify an order of the Fair Work Commission as a result of the changes being proposed by these amendments. I have to say that these amendments reflect exactly the efforts by the member for Dawson—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The Leader of the House on a point order.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

Mr Speaker, I seek your guidance, yet again, because the House has just rejected the amendments moved by the member for Gorton, and the amendments he now seeks to move are almost precisely the same as the ones the House has just dealt with. As a consequence, I am at a loss to know how they can be in order for him to move them again. They are virtually the same.

Tony Smith (Speaker) Share this | Link to this | Hansard source

On the point of order, I will hear from the member for Gorton.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Whilst they may be similar—to the effect of changing the order—they are an entirely different construction from those I moved earlier insofar as the change that would occur here would freeze the penalty rates not protect the net reduction to income. It is an entirely different thing, in relation to the first amendment.

In relation to the second part of the amendments that I am seeking to move, that is entirely a different construction. Indeed, that is entirely different to what I sought to move earlier—namely, that goes to the arrangements of the better off overall test, the way in which workers will be treated because of bargaining and the way in which that test would apply to an agreement approved by the Fair Work Commission. These may be similar, but they are distinct—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Gorton will resume his seat. Of course, he can jump many times in this—he was responding to the point of order and I think he is drifting back into his speech. I owe it to the House to rule on the point of order. The Leader of the House's point is there is a similarity, but, having examined the amendments, there are sufficient differences. There is material in this that is not in the amendments that the House has just dealt with, so the amendments are an order and the member for Gorton has the call.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The fact is that the member for Dawson—the only member of the government at this point—has foreshadowed his concern about the effect of the Fair Work Commission decision and what it will mean for up to 700,000 workers in this country. Whilst we see these amendments as not being as good as the ones we earlier moved, in that there are some issues as to the way they will apply to certain provisions of the Fair Work Act—

Tony Smith (Speaker) Share this | Link to this | Hansard source

The member for Gorton will resume his seat. The Leader of the House.

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

I move that the motion be put.

Question agreed.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Gorton be agreed to.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

By leave—I move amendments (2), (4) and (6) together as circulated in my name:

(2) Clause 2, page 2 (table item 3, column headed "Provisions"), omit "2,", substitute"2, 2A,".

(4) Page 6 (after line 18), after Schedule 2, insert:

Schedule 2A—Pay protection

Fair Work Act 2009

1 Subsection 16(3) (note)

Omit "base rate of pay", substitute "rate of pay".

2 At the end of section 18

Add:

(3) The regulations may prescribe, or provide for the determination of, the full rate of pay, for the purpose of section 206, of an employee who is a pieceworker. If the regulations do so, the employee's full rate of pay, for the purpose of that section, is as prescribed by, or determined in accordance with, the regulations.

Note: Section 206 deals with an employee's rate of pay under an enterprise agreement.

3 Section 169 (paragraph relating to Division 6)

Omit "base".

4 Division 6 of Part 2 -4 (heading)

Repeal the heading, substitute:

Division 6—Rates of pay under enterprise agreements

5 Section 206 (heading)

Repeal the heading, substitute:

206 Rates of pay under an enterprise agreement must not be less than the modern award rate or the national minimum wage order rate etc.

6 Subsection 206(1)

Omit "the base rate of pay" (wherever occurring), substitute "the full rate of pay".

7 Subsections 206(3) and (4)

Repeal the subsections, substitute:

If an employer is required to pay an employee the national minimum wage etc.

(3) If:

(a) an enterprise agreement applies to an employee; and

(b) the employee is not covered by a modern award that is in operation; and

(c) a national minimum wage order would, but for the agreement applying to the employee, require the employee's employer to pay the employee:

  (i) a base rate of pay that at least equals the national minimum wage; or

  (ii) a base rate of pay that at least equals the special national minimum wage; or

  (iii) a casual loading that at least equals the casual loading for award/agreement free employees (as applied to the employee's base rate of pay);

the base rate of pay and any casual loading payable to the employee under the enterprise agreement (the agreement rate) must not be less than the employee's base rate of pay and any casual loading that the employer would be required to pay the employee under the national minimum wage order.

(4) If the agreement rate is less than the base rate of pay and any casual loading that the employer would be required to pay the employee under the national minimum wage order (the required rate/loading), the agreement has effect in relation to the employee as if the agreement rate were equal to the required rate/loading.

8 Section 282

Omit:

(b) for an employee who is not covered by a modern award and to whom an enterprise agreement applies, the employee's base rate of pay under the agreement must not be less than the relevant national minimum wage or special national minimum wage (see subsection 206(3) (in Part 2-4)).

substitute:

(b) for an employee who is not covered by a modern award and to whom an enterprise agreement applies, the employee's base rate of pay and any casual loading under the agreement must not be less than the relevant national minimum wage, special national minimum wage or casual loading (see subsection 206(3) (in Part 2-4)).

9 Section 282

Omit:

For an employee who is covered by a modern award and to whom an enterprise agreement applies, the employee's base rate of pay under the agreement must not be less than the base rate of pay that would have been payable to the employee if the award applied (see subsection 206(1) (in Part 2-4)).

substitute:

For an employee who is covered by a modern award and to whom an enterprise agreement applies, the employee's full rate of pay under the agreement must not be less than the full rate of pay that would have been payable to the employee if the award applied (see subsection 206(1) (in Part 2-4)).

(6) Schedule 4, item 1, page 18 (after line 17), after Division 3, insert:

Division 3A—Amendments made by Schedule 2A to the amending Act

28A Application of amendments—enterprise agreements

(1) The amendments made by Schedule 2A to the amending Act apply to enterprise agreements, whether made before, on or after the commencement of that Schedule.

(2) However, the amendments made by that Schedule also have the effect they would have if they were, by express provision, confined to enterprise agreements made on or after the commencement of that Schedule.

Note: If the amendments are confined to enterprise agreements made on or after the commencement of that Schedule, the law as in force before that commencement will continue to apply to enterprise agreements made before that commencement.

Just for clarity, I will not be moving amendments (1), (3) and (5) simply because some of them are in similar terms to the amendments that we voted on.

With respect to amendments (2), (4) and (6), this provides parliament with the opportunity to right a wrong which is that there are a number of people currently employed who do not get penalty rates at all because of the enterprise agreements that they are working under.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The Leader of the House?

Christopher Pyne (Sturt, Liberal Party, Leader of the House) Share this | Link to this | Hansard source

As this is a bill about the repeal of four-yearly reviews and not about penalty rates, I therefore move:

That the question be now put.

Question agreed to.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Melbourne be agreed to.