House debates
Thursday, 19 March 2009
Fair Work Bill 2008
Consideration of Senate Message
Bill returned from the Senate with amendments.
Ordered that the amendments be considered immediately.
Senate’s amendments—
Agreements
(1) Clause 193, page 182 (after line 15), at the end of the clause, add:
FWA may assume employee better off overall in certain circumstances
(7) For the purposes of determining whether an enterprise agreement passes the better off overall test, if a class of employees to which a particular employee belongs would be better off if the agreement applied to that class than if the relevant modern award applied to that class, FWA is entitled to assume, in the absence of evidence to the contrary, that the employee would be better off overall if the agreement applied to the employee.
(2) Clause 207, page 196 (lines 5 to 10), omit subclause (5).
(3) Clause 211, page 198 (line 6), omit “and”.
(4) Clause 211, page 198 (lines 7 to 9), omit paragraph (1)(c), substitute:
unless FWA is satisfied that there are serious public interest grounds for not approving the variation.
(5) Clause 211, page 198 (line 26), omit “those provisions”, substitute “sections 180 and 188”.
(6) Clause 211, page 199 (line 3), omit “and subparagraph 188(a)(ii)”.
(7) Clause 211, page 199 (after line 4), after paragraph (3)(h), insert:
(ha) references in paragraphs 186(2)(c) and (d) to the agreement were references to the enterprise agreement as proposed to be varied; and
(hb) subparagraph 188(a)(ii) were omitted; and
(8) Page 202 (after line 5), after clause 217, insert:
217A FWA may deal with certain disputes about variations
(1) This section applies if a variation of an enterprise agreement is proposed.
(2) An employer or employee organisation covered by the enterprise agreement or an affected employee for the variation may apply to FWA for FWA to deal with a dispute about the proposed variation if the employer and the affected employees are unable to resolve the dispute.
(3) FWA must not arbitrate (however described) the dispute.
(9) Page 230 (after line 20), after clause 256, insert:
256A How employees, employers and employer organisations are to be described
(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by an enterprise agreement or other instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.
Application of this Act
(10) Clause 27, page 45 (before line 33), before subclause (1), insert:
(1A) Section 26 does not apply to any of the following laws:
(a) the Anti-Discrimination Act 1977 of New South Wales;
(b) the Equal Opportunity Act 1995 of Victoria;
(c) the Anti-Discrimination Act 1991 of Queensland;
(d) the Equal Opportunity Act 1984 of Western Australia;
(e) the Equal Opportunity Act 1984 of South Australia;
(f) the Anti-Discrimination Act 1998 of Tasmania;
(g) the Discrimination Act 1991 of the Australian Capital Territory;
(h) the Anti-Discrimination Act of the Northern Territory.
(11) Clause 27, page 45 (line 34) to page 46 (line 6), omit paragraph (1)(a).
(12) Clause 27, page 47 (lines 11 to 15), omit paragraph (2)(l), substitute:
(l) regulation of any of the following:
(i) employee associations;
(ii) employer associations;
(iii) members of employee associations or of employer associations;
(13) Clause 29, page 48 (lines 5 to 13), omit subclause (2), substitute:
(2) Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:
(a) any law covered by subsection 27(1A);
(b) any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).
(14) Clause 34, page 52 (line 12), at the end of paragraph (3)(a), add “and”.
(15) Clause 34, page 52 (after line 13), after subclause (3), insert:
(3A) For the purposes of extending this Act in accordance with subsection (3):
(a) any reference in a provision of this Act to an employer is taken to include a reference to:
(i) an Australian employer; and
(ii) an employer of an Australian-based employee; and
(b) any reference in a provision of this Act to an employee is taken to include a reference to:
(i) an employee of an Australian employer; and
(ii) an Australian-based employee.
(16) Page 53 (after line 16), after clause 35, insert:
35A Regulations excluding application of Act
(1) Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).
(2) If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.
Bargaining
(17) Clause 174, page 165 (after line 12), at the end of the clause, add:
Regulations may prescribe additional content and form requirements etc.
(6) The regulations may prescribe other matters relating to the content or form of the notice, or the manner in which employers may give the notice to employees.
(18) Clause 176, page 166 (line 28), after “agreement”, insert “, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2)”.
(19) Clause 176, page 167 (line 21), at the end of subclause (2), add:
; or (f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
(20) Page 169 (after line 8), after clause 178, insert:
178A Revocation of appointment of bargaining representatives etc.
(1) The appointment of a bargaining representative for an enterprise agreement may be revoked by written instrument.
(2) If a person would, apart from this subsection, be a bargaining representative of an employee for an enterprise agreement because of the operation of paragraph 176(1)(b) or subsection 176(2) (which deal with employee organisations), the employee may, by written instrument, revoke the person’s status as the employee’s bargaining representative for the agreement.
(3) A copy of an instrument under subsection (1) or (2):
(a) for an instrument made by an employee who will be covered by the agreement—must be given to the employee’s employer; and
(b) for an instrument made by an employer that will be covered by a proposed enterprise agreement—must be given to the bargaining representative and, on request, to a bargaining representative of an employee who will be covered by the agreement.
(4) The regulations may prescribe matters relating to the content or form of the instrument of revocation, or the manner in which the copy of the instrument may be given.
(21) Clause 179, page 169 (lines 9 to 19), omit the clause.
(22) Clause 186, page 176 (lines 3 to 8), omit subclause (3), substitute:
(3) FWA must be satisfied that the group of employees covered by the agreement was fairly chosen.
(3A) If the agreement does not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding whether the group of employees covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
(23) Clause 228, page 207 (after line 19), at the end of subclause (1), add:
; (f) recognising and bargaining with the other bargaining representatives for the agreement.
(24) Clause 229, page 209 (lines 6 to 10), omit subclause (5), substitute:
(5) FWA may consider the application even if it does not comply with paragraph (4)(b) or (c) if FWA is satisfied that it is appropriate in all the circumstances to do so.
(25) Clause 237, page 215 (lines 8 to 11), omit paragraph (2)(c), substitute:
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(26) Clause 237, page 215 (after line 16), after subclause (3), insert:
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
(27) Clause 238, page 216 (lines 23 to 26), omit paragraph (4)(c), substitute:
(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and
(28) Clause 238, page 216 (after line 27), after subclause (4), insert:
Matters which FWA must take into account
(4A) If the agreement proposed to be specified in the scope order will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (4)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
(29) Clause 539, page 430 (table item 5), omit the table item.
Commencement
(30) Clause 2, page 2 (table), omit the table, substitute:
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent. | |
2. Sections 3 to 40 | A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. | |
3. Sections 41 to 572 | A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. | |
4. Sections 573 to 718 | At the same time as the provision(s) covered by table item 2. | |
5. Sections 719 to 800 | A day or days to be fixed by Proclamation. A Proclamation must not specify a day that occurs before the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent. However, if any of the provision(s) do not commence within the period of 12 months beginning on the day on which the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 receives the Royal Assent, they commence on the first day after the end of that period. | |
6. Schedule 1 | At the same time as the provision(s) covered by table item 2. | |
Definition of small business employer
(31) Clause 23, page 41 (line 31), omit “15 employees”, substitute “20 employees”.
(32) Clause 23, page 42 (line 5), at the end of subclause (2), add:
; and (c) the number is to be calculated in terms of full-time equivalent positions, not as an individual head count of employees; and
(d) the regulations must prescribe a method for the calculation of full-time equivalent positions for the purposes of this section.
(33) Clause 121, page 122 (line 5), before “Section”, insert “(1)”.
(34) Clause 121, page 122 (after line 11), at the end of the clause, add:
(2) Subsection 23(1) has effect in relation to this section as if it were modified by omitting “20 employees” and substituting “15 employees”.
(3) Subsection 23(2) has effect in relation to this section as if it were modified by omitting paragraphs (c) and (d).
Description of employees
(35) Page 251 (after line 26), at the end of Division 7, add:
281A How employees, employers and employer organisations are to be described
(1) This section applies if a provision of this Part requires or permits an instrument of any kind to specify the employers, employees or employee organisations covered, or who will be covered, by a workplace determination or other instrument.
(2) The employees may be specified by class or by name.
(3) The employers and employee organisations must be specified by name.
(4) Without limiting the way in which a class may be described for the purposes of subsection (2), the class may be described by reference to one or more of the following:
(a) a particular industry or part of an industry;
(b) a particular kind of work;
(c) a particular type of employment;
(d) a particular classification, job level or grade.
Fair Work Information Statement; functions of the Fair Work Ombudsman
(36) Clause 124, page 126 (lines 3 to 17), omit the clause, substitute:
124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement
(1) The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.
Note: If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.
(2) The Statement must contain information about the following:
(a) the National Employment Standards;
(b) modern awards;
(c) agreement-making under this Act;
(d) the right to freedom of association;
(e) the role of FWA and the Fair Work Ombudsman;
(f) termination of employment;
(g) individual flexibility arrangements;
(h) right of entry (including the protection of personal information by privacy laws).
(3) The Fair Work Information Statement is not a legislative instrument.
(4) The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.
(37) Clause 576, page 461 (lines 8 and 9), omit “, and undertaking activities to promote public understanding of,”.
(38) Clause 682, page 517 (line 8), before “The”, insert “(1)”.
(39) Clause 682, page 517 (line 10), after “harmonious”, insert “, productive”.
(40) Clause 682, page 517 (line 13), after “organisations”, insert “and producing best practice guides to workplace relations or workplace practices”.
(41) Clause 682, page 517 (line 31), after “Note”, insert “1”.
(42) Clause 682, page 517 (after line 32), at the end of the clause, add:
Note 2: In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.
(2) The Fair Work Ombudsman must consult with FWA in producing guidance material that relates to the functions of FWA.
Fair Work Ombudsman; Fair Work Australia
(43) Clause 12, page 20 (lines 10 and 11), omit “who is also a police, stipendiary or special magistrate”.
(44) Clause 539, page 428 (lines 17 to 19), omit “if an undertaking given by the person in relation to the contravention has not been withdrawn (see subsection 715(4))”, substitute “in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A))”.
(45) Clause 544, page 441 (line 15), after “Note”, insert “1”.
(46) Clause 544, page 441 (after line 17), at the end of the clause, add:
Note 2: For time limits on orders relating to underpayments, see subsection 545(5).
(47) Clause 545, page 442 (after line 24), at the end of the clause, add:
Time limit for orders in relation to underpayments
(5) A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.
(48) Clause 573, page 458 (lines 21 and 22), omit “Division 7 deals with FWA’s seal, reviews and reports, and disclosing information obtained by FWA.”, substitute “Division 7 deals with FWA’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by FWA).”.
(49) Page 459 (after line 2), after clause 574, insert:
574A Schedule 1
Schedule 1 has effect.
(50) Clause 576, page 461 (line 12), after “section 650”, insert “or 653A”.
(51) Clause 576, page 461 (after line 12), after paragraph (2)(c), insert:
(ca) mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to FWA for mediation;
(52) Clause 596, page 470 (after line 6), at the end of subclause (2), add:
Note: Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:
(a) where a person is from a non-English speaking background or has difficulty reading or writing;
(b) where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.
(53) Clause 596, page 470 (lines 14 and 15), omit paragraph (4)(b), substitute:
(b) is an employee or officer of:
(i) an organisation; or
(ii) an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or
(iii) a peak council; or
(iv) a bargaining representative;
that is representing the person; or
(54) Clause 625, page 485 (after line 12), after paragraph (2)(d), insert:
(da) publishing the results of a protected action ballot under section 457;
(55) Clause 625, page 485 (after line 21), at the end of subclause (2), add:
; (i) any function or power prescribed by the regulations.
(56) Heading to Division 7, page 501 (lines 2 and 3), omit the heading, substitute:
Division 7—Seals and additional powers and functions of the President and the General Manager
(57) Heading to clause 653, page 502 (line 5), omit the heading, substitute “Reports about making enterprise agreements, individual flexibility arrangements etc.”.
(58) Clause 653, page 502 (lines 6 to 11), omit subclause (1), substitute:
Review and research
(1) The General Manager must:
(a) review the developments, in Australia, in making enterprise agreements; and
(b) conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and
(c) conduct research into the operati
1:17 pm
Julia Gillard (Lalor, Australian Labor Party, Deputy Prime Minister) Share this | Link to this | Hansard source
I would like to indicate to the House that the government proposes that amendments Nos (1) to (30), (35) to (93), (95) to (135) and (137) to (231) be agreed to and that amendments Nos (31) to (34), (94) and (136) be disagreed to. I suggest therefore that it may suit the convenience of the House first to consider amendments Nos (1) to (30), (35) to (93), (95) to (135) and (137) to (231) and then, when those amendments have been disposed of, to consider amendments Nos (31) to (34), (94) and (136).
Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source
There is no objection to the proposal by the Deputy Prime Minister.
Julia Gillard (Lalor, Australian Labor Party, Deputy Prime Minister) Share this | Link to this | Hansard source
I move:
That Senate amendments Nos (1) to (30), (35) to (93), (95 ) to (135) and (137) to (231) be agreed to.
Today is 20 March 2009. On 27 March 2006, Work Choices first came into effect in this country. The third anniversary is just one week away. We come today to this parliament to complete what the Australian Labor Party promised the Australian people in 2007: that we would rip up and get rid of Work Choices forever, for all time. Those opposite have fought us every step of the way.
Those opposite would now have us believe that somehow they are not associated with bringing Work Choices to this country. But if we tell the truth about the three years from 27 March 2006 til now, it is clear that Work Choices was the product of the Liberal Party and is still the policy of the Liberal Party. The Leader of the Opposition was a cabinet minister in the government that watched the Work Choices rip-offs and did nothing. The Deputy Leader of the Opposition is on the record as saying that the Liberal Party should go further than Work Choices. The shadow Treasurer was the Liberal Party’s preferred salesperson for Work Choices. The member for Menzies, who is leading the Liberal Party’s policy review, was the minister who introduced Work Choices. The man calling the shots, the member for Higgins, was the architect of Work Choices. The Liberal Party is the party of Work Choices now, today and forever.
In the three years between 27 March 2006 and now, we came to this place, against the fierce opposition of the Liberal Party, because of the goodwill of Australians and because of those people right around the country who campaigned against these laws because they knew that they were un-Australian and wrong for this nation. They were trade unionists and non trade unionists; they were people from churches and people of no faith; they were people who were born here and people who were born overseas; they were from every part of the country. They gathered under the banner of ‘Your Rights at Work’ to get rid of these laws.
We are here because the Labor Party campaigned against these laws and committed itself in its detailed policy documents to getting rid of them, ripping them up and eradicating them for all time. I would like to thank every Labor member of this House who campaigned for that outcome. That is why we are here today. In bringing these laws to the parliament, we not only published incredibly detailed policies but, once elected, went through an incredibly detailed consultation process. There was no railroading for us, no arrogant dismissal of other people’s views. We have taken on board sensible suggestions every step of the way. That is why we formed a business advisory group and had it meet so frequently. That is why we formed a small business working party and had it meet so frequently. That is why we had a workers advisory group and had it meet so frequently. That is why we took the unprecedented step of making available to the committee on industrial legislation—experts on workplace relations laws from around the country—the legislation before it came to this parliament.
During the course of this parliamentary debate, we have been prepared at every stage to accept good ideas that were in accord with our election mandate. The government is making a significant number of amendments and in part we are doing that because we have accepted the legitimate suggestions of those who, like the Labor government, are opposed to Work Choices. We have accepted the legitimate suggestions of the Australian Greens, Senator Fielding and Senator Xenophon. Those amendments are being put forward for the House’s consideration today because they accord with Labor’s mandate and they accord with the commitments that we gave to get a detailed policy to the Australian people and to enact that detailed policy in consultation with those who desperately care about this policy and want to see it work well.
The amendments in this motion are being brought forward in that spirit. But the House will shortly deal with amendments that are not being brought forward in that spirit, amendments that are being brought forward as the last desperate twisting and turning of the Liberal Party to hold firm to Work Choices. What the Liberal Party wanted in this debate was not a spirit of cooperation and goodwill, not a spirit of ‘can do’ to get rid of Work Choices, but to take every excuse, every point, every procedural device to ensure that Work Choices staggered through for another day. Their belief in Work Choices is one of the few things that still unite the Liberal Party in the modern age.
There is no doubt that, should the Liberal Party ever be re-elected, Work Choices would be back. Well, at least in future elections they will be judged against that test, because they were never judged against that test in the past. In 2004, when they went to the Australian people, they never breathed a word of Work Choices. The one thing you can say about the Liberal Party of this country is that they never tell the truth on workplace relations. They did not tell the truth in 2004 and then they foisted Work Choices on this country, bringing it into effect in 2006 and doing so much damage to hardworking Australians. We are sweeping that away, opposed every step of the way by the Liberal Party.
The amendments under consideration today go to a wide range of issues of fairness and balance in Australian workplaces. This includes the early commencement of Fair Work Australia and the Fair Work Ombudsman, the expansion of matters to be covered in the fair work information statement and the inclusion of right of entry. This is primarily to address concerns raised by the Privacy Commissioner to deal with the inspection of non-union member employee records and to strengthen the protections around right of entry for compliance purposes. There are amendments about outworkers to ensure the right of entry framework minimises the risk of unscrupulous employers destroying relevant records. There are amendments about greenfields agreements to ensure that new projects or businesses are not delayed by red tape in negotiating enterprise agreements that will apply. There is an amendment about the right to request flexible working arrangements for carers of children under 18 years of age with disabilities. There are amendments committing to an examination of the use of individual flexibility arrangements, further research into flexible working arrangements and requests for extensions of unpaid parental leave.
These amendments strengthen the Fair Work Bill. We have been prepared to accept amendments from people of goodwill, from people who were opposed to Work Choices, and consequently many of them have come forward from Senators Fielding and Xenophon and from the Australian Greens. I thank them for their contribution to this debate.
Of course, the sticking point in this debate, which we will deal with soon, is the attitude of the Liberal Party, which of course finds it all very amusing as it twists and turns in its political desperation to keep Work Choices. Anybody who watched the Senate last night saw the ugly face of the Liberal Party on display as it did that twisting and turning, and we will inevitably see more of that today. What the Australian people voted for is what we are determined to deliver: fairness, balance and flexibility in Australian workplaces. I commend the amendments to the House.
1:29 pm
Malcolm Turnbull (Wentworth, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source
The Deputy Prime Minister reminds me of a very wise saying from an old friend which reminds us there is no deal so good that a lawyer cannot ruin it.
Malcolm Turnbull (Wentworth, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source
You should listen. He said, ‘Anyone can go to jail if they get the right lawyer’—and, boy, has the labour movement got the right lawyer in the Deputy Prime Minister! Work Choices died at 2.30 am this morning, and the only people trying to revive it are the Australian Labor Party. The Prime Minister talked yesterday about putting the electrodes back onto the body of Work Choices. Well, let me tell you: the only people applying those electrodes are ‘Dr Rudd’ and his companion ‘Dr Gillard’. There they are, trying to revive it for political purposes.
We can have debates here about policy and we can have debates here about politics, but what we have here today is a debate about nothing more than pig-headedness. What we have are a government that brought their legislation so incompetently drafted, so pathetically prepared, that they have already agreed to 225 amendments—and they thanked the Independents and the Greens. ‘Thank you, Senator Xenophon,’ the Deputy Prime Minister said. She was so sanctimonious about that. The reality is that the key amendments here are the amendments we supported—the changes to right of entry and the changes to greenfields sites. Those are changes that we fought for, and they would never have been achieved without our advocacy. But what is holding us up? Why are we still here? We are here because the Deputy Prime Minister is so colossally stubborn, so vain, so determined to wring the last bit of political value out of this.
Malcolm Turnbull (Wentworth, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source
I love to hear the laughter from the other side, because they know. There are a couple of very experienced trade unionists on the other side here, and they know that the trade union movement has no interest in unfair dismissal. They know that they are about to see the death of Work Choices become a revival of Work Choices at the hands of the Deputy Prime Minister because she is too stubborn, too pig-headed, to agree to a sensible, realistic change to the definition of small business—something that will make a bad change less bad, something that will result in fewer job losses, something that will preserve employment in small business—and because she is too stiff-necked to bend to that amendment, even though she has agreed to 225 others. We saw the whole movement to change the industrial relations laws that the union movement put tens of millions of dollars into. They spent so much time advocating it, and now, thanks to an incompetent lawyer, they are going to run it into a brick wall.
We have talked about ambulance chasers in this place. The real problem is when you pursue a political goal and then discover you have run into a brick wall. That is exactly what the Deputy Prime Minister has done. The only reason we are here today, the only reason the government is not compromising, is that it wants to make one last pathetic political attempt to prop up the incompetent, bungling state government of Anna Bligh. One last pathetic point, then you will have to go back to your friends in the union movement and say: ‘We’ve crashed the whole plan. The whole project has been crashed over the difference between 15 and 20 full-time equivalents.’ That is what you have crashed the whole project over.
1:33 pm
Michael Keenan (Stirling, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source
Beyond all the rage and the theatre that we are seeing in the chamber today, beyond this pantomime, I want to remind the Australian people what we are actually here debating at the cost of $1 million a day to the Australian people to keep this parliament here. We are debating in this parliament, in a climate where unemployment is skyrocketing, whether we are to give small business the confidence and the incentive to employ more Australians. That is exactly the issue that we are debating here today. The reality is—and you can ask anyone in small business around the country and they will tell you the same—neither the Deputy Prime Minister nor the Prime Minister, nobody on that side of the House, understands small business. They do not understand the struggles that Australian small business goes through on a daily basis. They do not have that life experience. They do not understand what drives small business to create employment.
There was an article in the Australian this week that said they went to the Deputy Prime Minister’s electorate and down to Main Street, in Altona, I think it was—I am happy to be corrected. They went into the local pizza shop there, apparently one that the Deputy Prime Minister likes to visit. The next time she is there, she might like to ask them how many employees they have on the books. I bet you, if they are a pizza shop that has two shifts a day, which is very realistic, they will have more than 15 employees on their books. That is the reality and that is the reality of small businesses all around the country. The idea that having more than 15 people on your books means that you are no longer a small business is, quite frankly, absurd. We stand for a more realistic definition of ‘small business’. We want that pizza shop in Altona to be classified as a small business, as is appropriate, and we want that to happen so they can have the confidence to employ more people. Nobody in small business believes that this government understands either what small business goes through or what small business is required to do.
The Deputy Prime Minister consistently refers to the mandate that the government received at the election in 2007. Nobody on this side of the House disputes that the Labor Party have a mandate to change Australia’s industrial relations system. What the Labor Party were not elected to do was to come to Canberra and do whatever they liked to the Australian industrial relations system. They had a very detailed policy, which is contained within these two documents I have here.
The Deputy Prime Minister will have you believe that somehow Moses brought these documents down from the mountain—that they cannot possibly be altered, which is why the Labor Party cannot move from a definition of small business being 15 employees. But let us have a look at these documents and see where the Labor Party has trashed its own policy. I refer to the policy release of April 2007—Forward With Fairness: Labor’s Plan for Fairer and More Productive Australian Workplaces—where they talk about agreement making:
Labor’s good faith bargaining rules will not require an employer or employees to sign up to an agreement where they do not agree to the terms.
Yet what we find within the Fair Work Bill is that this has not translated into that bill. Within the bill there is compulsory arbitration, which is totally against the policy that they took to the people at the last election.
In the implementation plan that was released in August 2007—and this is an absolute corker, because it is very simple to understand—this is what Labor said about right of entry:
Labor will maintain the existing right of entry rules.
When that is translated into the Fair Work Bill, what we find is that union right of entry has been massively expanded. Union officials were given the power to go in and seek any employee record—not just those of union members—within a business. They could get access to all sorts of private records.
This is a very simple debate today. It is a debate about giving small business the confidence to employ more Australians. Nobody on that side of the House has any idea of the struggles that are facing small business today. They do not know that small business needs to be given the confidence to do what it does best: create employment. (Time expired)
1:39 pm
Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source
I rise very briefly to put my views on the record and to say, ‘Oh, what strange bedfellows indeed’. For all the posturing, for all the positioning, for all the impassioned speeches, I see very little difference in the positions of both sides of this chamber when we look at the foundation principles behind the movement from a scattered, state-based industrial relations system to a national industrial relations system.
Rather than to say, ‘A pox on all of you here,’ it is to congratulate everyone here in recognising the movement of business and the union tradition to a future, hopefully, within Australia and the Australian workplace that is one of a united working environment where those foundation pillars are adhered to and supported by both employees and employers. Those foundation pillars represent a national scheme, and for a lot of reasons I hope the term ‘Work Choices’ is one we can put on the shelf for political reasons and for a whole number of reasons. Let us hope the term itself is dead other than being a very important High Court case that recognises the importance of the role of the Commonwealth under the Corporations Law. I hope the move towards a national scheme is supported by both sides of this chamber, with a foundation pillar not only in industrial relations laws but in occupational health and safety laws as well. The range of structures that we currently have in place for businesses, in an increasingly global business environment within Australia today, is an absolute dog’s breakfast.
Another foundation pillar is the streamlining of an award structure. Whilst I have feedback from my communities about concerns with the hospitality award and the detail of the streamlining of the hospitality award, fundamentally as a foundation principle the streamlining of an award structure in Australia is something I would have thought both sides of this chamber would have strongly supported. I would have thought support for such a move would be seen in both sets of policies. Whether from a business angle or a union angle, fundamentally having a minimum set of principles in place in a fair work set of rules is something that I would have thought all members of this chamber would support. So, with respect to the 10 commandments from the government of the day, I wear that as a mandate issue. If there is a change of government sometime in the future, by all means I wish them good luck in looking at their own set of principles and their own set of minimum standards. But, fundamentally, those three key principles—moving to a national scheme, streamlining awards and a having set of 10 commandments, if you like, in setting some national minimum principles in the workplace—are all good, solid policy for the future of this country.
I endorse the comment made on a news bulletin this morning by the Leader of the Opposition, where he said the only point of difference was this issue of 15 or 20 employees as a definition of small business. That is what it has come down to.
Anthony Albanese (Grayndler, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source
But then they’re going to vote against the legislation.
Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source
No. I am sure that when dealing with amendments to this legislation you have seen me at different times sitting either with members of the opposition or with members of the government. Mine will be a consistent ‘yes’ position. I will be supporting the amendments from the Senate. I think they did some good, meaty work last night. I actually think they justified their existence—
Robert Oakeshott (Lyne, Independent) Share this | Link to this | Hansard source
I would not go quite that far. They earned their keep last night in going through the details of a fairly substantive change through a lot of different amendments to the Fair Work Bill. So I will be consistently sitting on that side saying: ‘Let us pass this legislation. Let us bring it together. Let us have a workplace for the future that recognises the traditions of where everyone has come from in this chamber and let us have a country that has a business community that is working and working well.’
Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source
The question is that Senate amendments (1) to (30), (35) to (93), (95) to (135) and (137) to (231) be agreed to.
Question agreed to.
1:44 pm
Julia Gillard (Lalor, Australian Labor Party, Deputy Prime Minister) Share this | Link to this | Hansard source
I move:
That amendments (31) to (34), (94) and (136) be disagreed to.
The Leader of the Opposition calls me stubborn. Stubborn in pursuit of an election mandate; stubborn in pursuit of delivering a promise—well, I’ll take that. I cannot wait to see the bumper stickers from the Liberal Party at the next election: ‘Don’t vote Labor, they’re too stubborn in delivering what they promise to you.’ I cannot wait to see those on the back of every Liberal members’ car at the next election.
Yes, we are stubborn in doing what we said we would do because we believe in telling the Australian people the truth. I understand that the concept of telling the Australian people the truth does not resonate with members of the Liberal Party. I understand that they struggle with that, because they did not tell the Australian people the truth about Work Choices. As recently as 13 December last year, the Leader of the Opposition was saying:
Labor took a proposal to change the unfair dismissal laws to the election and won. So we must respect that.
Clearly, if that had been a statement of truth then we would not be having the debate that we are about to have now about Labor’s unfair dismissal laws. So this is the side of the House that is stubborn in telling the truth and stubborn in delivering its election promises, and over there we have promises given and not delivered personally by the Leader of the Opposition as recently as 13 December 2008.
Compared with the carry-on that we have seen from the other side, let us be clear about what the amendments are. We went to the last election and we said that we would bring unfair dismissal laws back to this country so that good workers, if they were unfairly dismissed, had recourse and remedy—something Work Choices basically stripped away for Australian workers. We said we understood that there should be special arrangements for small business and small business should be defined as fewer than 15 employees. Why? Because that is the known definition under the workplace relations law for redundancy and we wanted the system to be simple and the same—special arrangements for small businesses on redundancy and unfair dismissal, same definition. We took that to the election and we are seeking to deliver it, stubborn in pursuit of delivering what we said we would to the Australian people.
The reason the argument has boiled down to this is not that the Liberal Party sees some great magic in the number 15 versus the number 20. Indeed, last night in the Senate they were advocating 25. Their position in government was that workers should not have any entitlement to contest their dismissal. The only reason we are debating this here today is that they had to comb through for something that they could get the support of the Independent senators on so that they had something over which to keep twisting and turning and opposing the Fair Work Bill, so that they could stand another day, another 24 hours, in defence of Work Choices. That is all it is about.
Then the Liberal Party moved two other very silly amendments in the Senate as part of this twisting and turning in defence of Work Choices. It made a nonsensical change to the objects of the act. In a bill that talks about enterprise level bargaining throughout, for whatever reason they thought they would change it to ‘enterprise level or workplace’—a change that does not make any sense, and we are rejecting it. And then, in their desperation in the Senate, unbelievably, the Liberal Party moved to strip out of this bill protections for independent contractors from being discriminated against because they are not members of unions. This is what the Liberal Party moved to take out of this bill, to strip the words ‘independent contractor’ out so that all freedom of association provisions for independent contractors would be gone. We will not stand for those kinds of silly amendments and we are rejecting one of their independent contractor amendments through this motion.
All this is about, all it has ever been about and all it ever will be about is that this side of the House believes in fairness and decency at work and the Liberal Party does not. This side of the House fought Work Choices and we always will. The Liberal Party is the party of Work Choices and always will be.
1:49 pm
Malcolm Turnbull (Wentworth, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source
This is all about jobs. Right across Australia today there are thousands of small businesses struggling with a slowing economy and rising unemployment. They are concerned about how they will be able to maintain people on their payroll. They are focused on jobs. Thousands of those small businesses are in the state of Queensland, and they are weighing up the rising risk of a Rudd recession. They are looking at all of the policies of this government, each and every one of them, and measuring their effect against the results. We know what the results have been: they have been slowing economic growth and growth going into reverse, with the likelihood that the March quarter will be negative too and we will in every sense be in a recession with rising unemployment. That is what Australia’s small businesses are about, and nowhere more so than in Queensland, because nowhere more so than in Queensland do we have small businesses built around the hospitality industry.
Let’s look to see what industry is actually saying. What are the retailers saying? The Australian Retailers Association welcomed the vote last night because they recognise the change that was made to the definition of ‘small business’ for this purpose to 20 full-time equivalents was good for jobs. They made the point that:
Without this redefinition of small business, unfair dismissal laws in the Government’s Fair Work Bill will destroy small business confidence to employ staff and we cannot afford this in the current economic climate.
We can look at the Australian Chamber of Commerce and Industry. ACCI has been quoted extensively by the government lately, so I am sure that they will be very interested to listen to what ACCI has had to say about jobs, which is the real issue. They have said about the change that we supported in the Senate early this morning:
The change is necessary because the employment mix in small business has changed over the years, and past unfair dismissal laws dented the confidence of small businesses to employ permanent staff. Especially now, business confidence is crucial to jobs, and small business is the jobs engine of the economy.
So these two representative organisations, both representing small businesses, both representing businesses that are particularly vulnerable to these laws, are calling for the government to be reasonable and to do what we did all the time in government and accept Senate amendments. We recognised that this is a parliament of two houses, and we recognised changes imposed on many occasions by the Senate.
Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source
Order! I am sure everyone wants to be here for the vote.
Malcolm Turnbull (Wentworth, Liberal Party, Leader of the Opposition) Share this | Link to this | Hansard source
The government benches are having a very merry time, but these are very hollow laughs, because they know the intransigence of their deputy leader has got them into the position where the industrial relations project that so many of those on the government benches poured so many tens of millions of dollars of their members’ funds into is about to be driven into a brick wall—because Work Choices is dead. We voted to kill it at 2.30 this morning, and it is the government, the Deputy Prime Minister in particular, so deluded, so vain, so obstinate, that is going to bring it back to life. Just remember this scene in Dr Frankenstein’s laboratory: Dr Frankenstein and his offsider ‘Dr Gillard’ are there recharging the corpse, bringing it back to life. All of their supporters and all of their donors in the union movement will be saying, ‘Julia, we’re paying a very heavy price for your vanity, a very heavy price indeed.’
Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source
Order! I ask that the Leader of the Opposition use people’s appropriate titles. The question is that amendments (31) to (34), (94) and (136) be disagreed to.
Question put.
2:06 pm
Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source
I present the reasons for the House disagreeing to Senate amendments Nos 31 to 34, 94 and 136 and I move:
That the reasons be adopted.
Question agreed to.
Order! The chair will be resumed at the ringing of the bells.
Sitting suspended from 2.06 pm to 5.35 pm
5:35 pm
Kevin Rudd (Griffith, Australian Labor Party, Prime Minister) Share this | Link to this | Hansard source
This is a great outcome for working Australians.