Adam Bandt (Melbourne, Australian Greens) Share 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.

See this speech in context