Patrick Gorman (Perth, Australian Labor Party, Assistant Minister to the Prime Minister) Share this | Hansard source

I present a supplementary explanatory memorandum to the bill and ask leave of the House to move government amendments (1) to (23), as circulated, together.

Leave granted.

I move:

(1) Clause 6, page 11 (lines 4 to 19), omit subclause (4), substitute:

(4) An employer is also a dependent employer if:

(a) the employer (the relevant employer) is a constitutional corporation; and

(b) the relevant employer:

(i) has a commercial relationship with another constitutional corporation that operates (whether alone or jointly) a coal mine; or

(ii) has a commercial relationship with an associated entity of another constitutional corporation, where the other constitutional corporation operates (whether alone or jointly) a coal mine; or

(iii) is an associated entity of another constitutional corporation, where the other constitutional corporation operates (whether alone or jointly) a coal mine;

where:

(iv) the coal from the coal mine is being, or is to be, supplied to a closing employer for use in generating electricity at the coal-fired power station concerned; and

(v) the other constitutional corporation will, or will be likely to, cease a substantial part of the business operations carried on by the other constitutional corporation in the same geographic area in which the coal-fired power station concerned is located as a direct result of the eventual closure of that power station; and

(c) the relevant employer employs employees to perform work in the business operations carried on at the coal mine.

(2) Clause 54, page 41, (lines 15 to 17), omit "If an employer contravenes a civil penalty provision, a court may order the payment of a civil penalty under the Regulatory Powers Act.", substitute "If an employer contravenes a civil penalty provision, a court may order the payment of a civil penalty under the Regulatory Powers Act and may order the awarding of compensation for loss that a person has suffered because of the contravention.".

(3) Clause 54, page 41 (after line 17), at the end of the clause, add:

A court can grant an injunction restraining a person from contravening a provision of this Part or requiring a person to comply with a provision of this Part.

(4) Clause 55, page 43 (lines 8 to 10), omit subclause (5), substitute:

(5) As part of the community of interest process, the CEO must consult:

(a) employers covered by paragraph (1)(a); and

(b) employers covered by paragraph (1)(b); and

(c) each employer organisation that is entitled to represent the industrial interests of an employer covered by paragraph (1)(a) or (b).

(5) Clause 56, page 44 (line 27), after "employment", insert ", including supports provided under relevant enterprise agreements or other industrial instruments".

(6) Clause 57, page 47 (line 2), after "employment", insert ", including supports provided under relevant enterprise agreements or other industrial instruments".

(7) Clause 58, page 49 (after line 10), after paragraph (1)(b), insert:

(ba) inform each transition employee of the employer that, if the employee becomes a participating employee of the employer, personal information about the employee may be given to the CEO under section 64 or disclosed by the CEO under section 66; and

(8) Clause 58, page 49 (after line 13), at the end of subclause (1), add:

Note: Australian Privacy Principle 6 in Schedule 1 to the Privacy Act 1988 has the effect that, if a closing employer or dependent employer is an APP entity (within the meaning of that Act) and holds personal information about a transition employee that was collected for a particular purpose, the employer must not use or disclose the information for another purpose unless:

(a) the employee has consented to the use or disclosure of the information; or

(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(c) that use or disclosure is otherwise authorised by that Principle.

(9) Clause 58, page 49 (line 14), omit "Paragraphs (1)(a) and (b)", substitute "Paragraphs (1)(a), (b) and (ba)".

(10) Clause 59, page 49 (line 29), at the end of paragraph (1)(c), add ", including supports provided under those agreements or instruments".

(11) Clause 59, page 51 (after line 6), after subclause (9), insert:

Reasonable notice for time off work or access to flexible working arrangements

(9A) In any request of a transition employee of a closing employer or dependent employer for time off work, or access to flexible working arrangements, to receive career planning advice or financial advice arranged by the employee, the employee must give the employer reasonable notice of wanting that time off work or that access to flexible working arrangements.

(9B) In any request of a participating employee of a closing employer or dependent employer for time off work, or access to flexible working arrangements, to:

(a) undertake training to assist the employee to find other employment; or

(b) attend activities relating to the recruitment of the employee;

the employee must give the employer reasonable notice of wanting that time off work or that access to flexible working arrangements.

Evidence

(9C) If a closing employer or dependent employer has allowed a transition employee of the employer time off work, or access to flexible working arrangements, to receive career planning advice or financial advice arranged by the employee, the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the employee used the time off work or flexible working arrangements to receive that advice.

(9D) Before a closing employer or dependent employer makes a financial contribution towards the costs of career planning advice or financial advice arranged by a transition employee of the employer, the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person of the total cost of the advice.

(9E) If a closing employer or dependent employer has allowed a participating employee of the employer time off work, or access to flexible working arrangements, to:

(a) undertake training to assist the employee to find other employment; or

(b) attend activities relating to the recruitment of the employee;

the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the employee used the time off work or flexible working arrangements to undertake the training or to attend the activities.

(9F) Before a closing employer or dependent employer makes a financial contribution towards the costs of training to assist a participating employee of the employer to find other employment, the employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person of the total cost of the training.

(12) Clause 60, page 52 (after line 34), at the end of subclause (5), add:

Note: See section 61A for the dealing with disputes.

(13) Clause 61, page 55 (after line 32), at the end of subclause (5), add:

Note: See section 61A for the dealing with disputes.

(14) Clause 61, page 56 (line 5), after "following conduct", insert ", including conduct to comply with obligations under relevant enterprise agreements or other industrial instruments,".

(15) Page 57 (after line 23), after clause 61, insert:

61A Dealing with disputes

Disputes dealt with by the Fair Work Commission

(1) If:

(a) a term referred to in paragraph 60(5)(d) or 61(5)(d) requires or allows the Fair Work Commission to deal with a dispute about any matter arising under a determination under subsection 60(5) or 61(5); and

(b) such a dispute arises; and

(c) a party to the dispute applies to the Fair Work Commission to deal with the dispute;

the Fair Work Commission may deal with the dispute.

(2) In dealing with the dispute, the Fair Work Commission must not exercise any powers limited by the term referred to in paragraph 60(5)(d) or 61(5)(d) (as the case requires).

(3) If, in accordance with that term, the parties to the dispute have agreed that the Fair Work Commission may arbitrate (however described) the dispute, the Fair Work Commission may do so.

(4) Division 3 of Part 5-1 of the Fair Work Act 2009 applies in relation to the Fair Work Commission dealing with the dispute in a corresponding way to the way in which that Division applies in relation to the dealing with a dispute covered by subsection 595(1) of that Act.

Disputes dealt with by persons other than the Fair Work Commission

(5) If a term referred to in paragraph 60(5)(d) or 61(5)(d) requires or allows a person other than the Fair Work Commission to deal with a dispute about any matter arising under a determination under subsection 60(5) or 61(5):

(a) the person, in dealing with the dispute, must not exercise any powers limited by the term; and

(b) if, in accordance with the term, the parties to the dispute have agreed that the person may arbitrate (however described) the dispute—the person may do so.

(16) Clause 62, page 59 (line 5), after "following conduct", insert ", including conduct to comply with obligations under relevant enterprise agreements or other industrial instruments,".

(17) Clause 64, page 63 (lines 4 and 5), omit ", within the period and in the manner specified in the notice,".

(18) Clause 64, page 63 (lines 18 and 19), omit subclause (3), substitute:

(3) The employer must give the information or produce the documents:

(a) in the manner specified in the notice under subsection (1); and

(b) before the end of the following period:

(i) the period specified in the notice (which must end at least 14 days after the day the notice is given), unless subparagraph (ii) applies;

(ii) if the CEO allows a longer period—that longer period.

(19) Clause 64, page 63 (line 31), omit paragraph (5)(b), substitute:

(b) the employer fails to give the information or produce the documents in accordance with this section.

(20) Clause 67, page 66 (line 28), at the end of subclause (4), add:

; (c) a court of a State or Territory that has jurisdiction in relation to the matter.

(21) Clause 67, page 66 (after line 28), at the end of the clause, add:

Pecuniary penalty orders

(5) Subsection 82(1) of the Regulatory Powers Act, to the extent that Part 4 of that Act relates to this Part, has effect as if an application made under that subsection were an application for an order that a person, who is alleged to have contravened a civil penalty provision, pay a pecuniary penalty.

(6) In relation to an application under subsection 82(1) of the Regulatory Powers Act, to the extent that Part 4 of that Act relates to this Part, if a court is satisfied that a person has contravened a civil penalty provision of this Act, then, despite subsection 82(3) of that Act, the court is empowered under subsection 82(3) of that Act to make an order:

(a) that the person pay a pecuniary penalty; and

(b) that the pecuniary penalty, or a part of the pecuniary penalty, be paid to the Commonwealth, a particular organisation (within the meaning of the Fair Work Act 2009) or a particular person.

(7) To the extent that the court orders that the pecuniary penalty, or a part of the pecuniary penalty, be paid to the Commonwealth, section 83 of the Regulatory Powers Act applies to the pecuniary penalty or the part of the pecuniary penalty.

(8) To the extent that the court orders that the pecuniary penalty, or a part of the pecuniary penalty, be paid to a particular organisation (within the meaning of the Fair Work Act 2009) or a particular person, the pecuniary penalty, or the part of the pecuniary penalty, may be recovered as a debt due to the organisation or person.

(22) Page 66 (after line 28), at the end of Division 6, add:

67A Compensation orders

In addition to the powers that a court has under Part 4 of the Regulatory Powers Act, to the extent that Part relates to this Part, the court may, if it is satisfied that a person has contravened a civil penalty provision of this Act, make an order under this section awarding compensation for loss that a person has suffered because of the contravention.

(23) Page 67 (before line 1), before Division 7, insert:

Division 6A — Injunctions

67B Injunctions

Enforceable provisions

(1) The provisions of this Part are enforceable under Part 7 of the Regulatory Powers Act.

Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.

Authorised person

(2) For the purposes of Part 7 of the Regulatory Powers Act, the CEO is an authorised person in relation to the provisions mentioned in subsection (1).

(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following is also an authorised person in relation to subsection 60(7), 61(9) or 62(9):

(a) a person that is an employee organisation that is entitled to represent the industrial interests of one or more of the transition employees of the closing employer or dependent employer that is alleged to have contravened that subsection;

(b) a transition employee of that closing employer or dependent employer.

Relevant court

(4) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia (Division 2);

(c) a court of a State or Territory that has jurisdiction in relation to the matter.

Division 6B — Costs

67C Costs

(1) A person (the first person) must bear the person's own costs in relation to:

(a) an application under subsection 82(1) of the Regulatory Powers Act, to the extent that Part 4 of that Act relates to this Part; or

(b) an application under subsection 121(1) or (2) of the Regulatory Powers Act, to the extent that Part 7 of that Act relates to this Part.

(2) However, the court hearing that application may make an order under this subsection that the first person bear some or all ofthe costs of another person in relation to the application if:

(a) the court is satisfied that the first person made the application, or the first person responded to the application, vexatiously or without reasonable cause; or

(b) the court is satisfied that the first person's unreasonable act or omission caused the other person to incur the costs; or

(c) the court is satisfied that it should have been reasonably apparent to the first person that the first person's application, or the first person's response to the application, had no reasonable prospect of success.

These amendments are largely technical in nature. They do not substantially change the intended operation of the Net Zero Economy Authority or the energy industry jobs plan it will administer. Rather, the amendments aim to clarify certain elements of the bill to address the concerns of some key stakeholders. The proposed technical amendments have been developed in consultation with the Australian Council of Trade Unions, the Australian Industry Group and the Business Council of Australia. They also take into account consideration of submissions and evidence given to the Senate Finance and Public Administration Legislation Committee's inquiry into the bill. Accordingly, I want to thank the BCA, the Ai Group and the ACTU for the positive manner in which they've engaged over the bill.

I also want to acknowledge the many organisations and individuals that took the time to make submissions as part of the Senate committee inquiry examining this bill. We have closely considered all of those submissions and several constructive proposals that came out of those inquiries, which are reflected in these government amendments. It is important to note that the vast majority of submissions to the Senate inquiry were highly supportive of the bill. This reflects the broad community support for the important role that the Net Zero Economy Authority will play as our economy decarbonises.

Turning to the specific amendments: a number of the amendments would improve alignment between the energy industry jobs plan contained in part 5 of the bill and the existing workplace relations framework under the Fair Work Act. These amendments reinforce the government's policy intent that the energy industry jobs plan is complementary to the existing workplace relations framework. Amendments in this category include aligning the judicial remedies for breach of a Fair Work Commission determination under part 5 of the bill in line with the standard approach under the Fair Work Act for breaches of awards, enterprise agreements and other industrial instruments; ensuring that there is an effective dispute resolution procedure involving the Fair Work Commission in relation to disputes concerning an employer's obligations arising under a determination made under part 5 of the bill; and clarifying the requirement that the authority's CEO and the Fair Work Commission must consider the existing supports contained in enterprise agreements and other industrial instruments in relation to both the community-of-interest process and the making of a Fair Work Commission determination under part 5 of the bill.

Other amendments would support employers to successfully engage with the framework. This includes in their interactions with the authority and their legislated obligations. Amendments in this category are based on recommendations from the Australian Industry Group and the Business Council of Australia. They include ensuring all relevant employers and employer representative bodies are adequately consulted throughout the energy industry jobs plan; clarifying how and when employers can provide information to the CEO and how the information gathered by the authority interacts with the Privacy Act; ensuring that employers are given proper notice for any paid time off work for training or career development purposes by their employees and are provided evidence of attendance if requested by the employer; and ensuring that the CEO has the discretion to grant additional time to employers where the authority has exercised its powers to require the provision of information from closing or dependent employers.

As noted when this bill was introduced, generations of Australians have powered our nation safely, reliably and with dignity. This bill will help ensure they continue to do so for generations to come. The government recognises that it has a critical role to play in supporting the communities in which the transition to net zero will be most concentrated. We must support these communities and all of those that live in them and the workers that work in these industries that this bill seeks to address. The authority will work with employers, unions and others to assist workers to engage in new opportunities. Workers in a closing facility will be supported to pursue opportunities for retraining, career mentoring and redeployment.

The proposed model reflects the outcomes of detailed consultations with unions and employer groups. It will support workers on the front line of the energy transition. At the same time, it will support businesses to access the skills and experience these workers possess. Establishing the Net Zero Economy Authority will help deliver better coordination of programs and policies. It will attract investors and help communities make the most of these transformation opportunities. By establishing the authority, we'll engage major stakeholders in the decision-making and support structures. We'll help deliver Australia's future as a renewable energy superpower. This bill will ensure we leave no-one behind in that transformation. I commend the bill and these amendments to the House.

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