Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and I seek leave to move government amendments (1) to (18) on sheet AB231.

Leave granted.

I move government amendments (1) to (18) on sheet AB231:

(1) Title, page 1 (lines 1 and 2), omit the title, substitute:

A Bill for an Act to amend the law relating to workplace relations, and for related purposes

(2) Clause 2, page 2 (after table item 6), insert:

(3) Clause 2, page 2 (after table item 7), insert:

(4) Clause 2, page 2 (table item 10), omit "item 3", substitute "items 3 and 4".

(5) Clause 2, page 3 (after table item 17), insert:

(6) Schedule 3, item 6, page 17 (line 17), after "2011", insert ", but does not include a member of the Defence Force".

(7) Schedule 3, item 6, page 18 (line 26), before "The FWC", insert "(1)".

(8) Schedule 3, item 6, page 18 (after line 30), at the end of section 789FE, add:

(2) However, the FWC may dismiss an application under section 789FC if the FWC considers that the application might involve mattersthat relate to:

  (a) Australia's defence; or

  (b) Australia's national security; or

  (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

  (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss applications under section 789FC, see section 587.

(9) Schedule 3, item 6, page 19 (after line 36), at the end of Part 6-4B, add:

789FI This Part is not to prejudice Australia ' s defence, national security etc.

     Nothing in this Part requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

  (a) Australia's defence; or

  (b) Australia's national security; or

  (c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

  (d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

789FJ Declarations by the Chief of the Defence Force

(1) Without limiting section 789FI, the Chief of the Defence Force may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a specified activity.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

789FK Declarations by the Director -General of Security

(1) Without limiting section 789FI, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

789FL Declarations by the Director -General of ASIS

(1) Without limiting section 789FI, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Part do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

(10) Page 19 (after line 36), after Schedule 3, insert:

Schedule 3A—Conferences

Fair Work Act 2009

1 At the end of section 592

  Add:

(4) At a conference, the FWC may:

  (a) mediate or conciliate; or

  (b) make a recommendation or express an opinion.

(5) Subsection (4) does not limit what the FWC may do at a conference.

2 Subsection 595(5)

  Omit "any of the powers referred to in subsection (2) or (3)", substitute "the power referred to in subsection (3)".

(11) Page 28 (after line 29), after Schedule 4, insert:

Schedule 4A—Consent arbitration for general protections and unlawful termination

Part 1—General protections

Fair Work Act 2009

1 Section 12 (definition of general protections court application )

  Omit "370(2)", substitute "368(4)".

2 Subsection 361(1)

  Omit ", in proceedings arising from the application,".

3 Section 365 (heading)

  After "with a", insert "dismissal".

4 Sections 368, 369, 370 and 371

  Repeal the sections, substitute:

368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

  (a) the FWC must issue a certificate to that effect; and

  (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of this Part.

369 Dealing with a dismissal dispute by arbitration

(1) This section applies if:

  (a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and

  (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

  (c) the notification:

     (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and

     (ii) complies with any requirements prescribed by the procedural rules; and

  (d) sections 726, 728, 729, 730, 731 and 732 do not apply.

Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

  (a) an order for reinstatement of the person;

  (b) an order for the payment of compensation to the person;

  (c) an order for payment of an amount to the person for remuneration lost;

  (d) an order to maintain the continuity of the person's employment;

  (e) an order to maintain the period of the person's continuous service with the employer.

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

370 Taking a dismissal dispute to court

     A person who is entitled to apply under section 365 for the FWC to deal with a dispute must not make a general protections court application in relation to the dispute unless:

  (a) both of the following apply:

     (i) the FWC has issued a certificate under paragraph 368(3)(a) in relation to the dispute;

     (ii) the general protections court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

  (b) the general protections court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 369(1)), a general protections court application cannot be made in relation to the dispute (see sections 727 and 728).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

5 Section 372 (heading)

  After "with a", insert "non-dismissal".

6 Subdivision C of Division 8 of Part 3 -1

  Repeal the Subdivision, substitute:

Subdivision C—Appeals and costs orders

375A Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 369(2) (which is about arbitration of a dismissal dispute) unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 369(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

375B Costs orders against parties

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

  (a) an application for the FWC to deal with the dispute has been made under section 365; and

  (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 377.

(3) This section does not limit the FWC's power to order costs under section 611.

376 Costs orders against lawyers and paid agents

(1) This section applies if:

  (a) an application for the FWC to deal with a dispute has been made under section 365 or 372; and

  (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

  (c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

  (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or

  (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 377.

(4) This section does not limit the FWC's power to order costs under section 611.

377 Applications for costs orders

     An application for an order for costs in relation to an application under section 365 or 372 must be made within 14 days after the FWC finishes dealing with the dispute.

377A Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 375B or 376 in relation to an application under section 365, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 375B or 376 in relation to an application under section 365, the FWC:

  (a) is not limited to the items of expenditure appearing in the schedule; but

  (b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

378 Contravening costs orders

     A person to whom an order for costs made under section 375B or 376 applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

7 Subsection 539(2) (at the end of the cell at table item 11, column 1)

  Add:

369(3)

8 Section 544 (note 1)

  Omit "subsections 371(2)", substitute "subparagraphs 370(a)(ii)".

9 Paragraph 601(5)(a)

  Omit "section 369", substitute "paragraph 368(3)(a)".

10 After paragraph 609(2)(e)

  Insert:

  (ea) the requirements for making a notification to the FWC;

11 Subparagraph 727(1)(b)(iii)

  Omit all the words after "under", substitute "paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".

12 After subsection 727(1)

  Insert:

  (1A) This section also applies if:

  (a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

  (b) the application has not:

     (i) been withdrawn by the person who made the application; or

     (ii) failed for want of jurisdiction; and

  (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

  (d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

Part 2—Unlawful termination

Fair Work Act 2009

13 Section 12 (definition of unlawful termination court application )

  Omit "778(2)", substitute "776(4)".

14 Subsection 539(2) (at the end of the cell at table item 35, column 1)

  Add:

777(3)

15 Section 544 (note 1)

  Omit "779(2)", substitute "778(a)(ii)".

16 Subparagraph 730(1)(b)(iii)

  Omit all the words after "under", substitute "paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful)".

17 After subsection 730(1)

  Insert:

  (1A) This section also applies if:

  (a) an unlawful termination FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

  (b) the application has not:

     (i) been withdrawn by the person who made the application; or

     (ii) failed for want of jurisdiction; and

  (c) a certificate in relation to the dispute has been issued by the FWC under paragraph 776(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

  (d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 777(1)(b) and (c).

18 Paragraph 774(1)(a)

  Omit "60", substitute "21".

19 Sections 776, 777, 778, 779, 780 and 781

  Repeal the sections, substitute:

776 Dealing with a dispute (other than by arbitration)

(1) If an application is made under section 773, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(2) Any conference conducted for the purposes of dealing with the dispute (other than by arbitration) must be conducted in private, despite subsection 592(3).

Note: For conferences, see section 592.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

  (a) the FWC must issue a certificate to that effect; and

  (b) if the FWC considers, taking into account all the materials before it, that arbitration under section 777, or an unlawful termination court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

(4) An unlawful termination court application is an application to a court under Division 2 of Part 4-1 for orders in relation to a contravention of subsection 772(1).

777 Dealing with a dispute by arbitration

(1) This section applies if:

  (a) the FWC issues a certificate under paragraph 776(3)(a) in relation to the dispute; and

  (b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

  (c) the notification:

     (i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and

     (ii) complies with any requirements prescribed by the procedural rules; and

  (d) sections 726, 727, 728, 729, 731 and 732 do not apply.

Note: Sections 726, 727, 728, 729, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 730).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

  (a) an order for reinstatement of the employee;

  (b) an order for the payment of compensation to the employee;

  (c) an order for payment of an amount to the employee for remuneration lost;

  (d) an order to maintain the continuity of the employee's employment;

  (e) an order to maintain the period of the employee's continuous service with the employer.

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).

778 Taking a dispute to court

     A person who is entitled to apply under section 773 for the FWC to deal with a dispute must not make an unlawful termination court application in relation to the dispute unless:

  (a) both of the following apply:

     (i) the FWC has issued a certificate under paragraph 776(3)(a) in relation to the dispute;

     (ii) the unlawful termination court application is made within 14 days after the day the certificate is issued, or within such period as the court allows on an application made during or after those 14 days; or

  (b) the unlawful termination court application includes an application for an interim injunction.

Note 1: Generally, if the parties notify the FWC that they agree to the FWC arbitrating the dispute (see subsection 777(1)), an unlawful termination court application cannot be made in relation to the dispute (see sections 730 and 731).

Note 2: For the purposes of subparagraph (a)(ii), in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, the Industrial Relations Court of Australia set down principles relating to the exercise of its discretion under a similarly worded provision of the Industrial Relations Act 1988.

779 Appeal rights

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under subsection 777(2) (which is about arbitration of a dispute) unless the FWC considers that it is in the public interest to do so.

(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under subsection 777(2) can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.

779A Costs orders against parties

(1) The FWC may make an order for costs against a party (the first party) to a dispute for costs incurred by the other party to the dispute if:

  (a) an application for the FWC to deal with the dispute has been made under section 773; and

  (b) the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the dispute.

(2) The FWC may make an order under subsection (1) only if the other party to the dispute has applied for it in accordance with section 781.

(3) This section does not limit the FWC's power to order costs under section 611.

780 Costs orders against lawyers and paid agents

(1) This section applies if:

  (a) an application for the FWC to deal with a dispute has been made under section 773; and

  (b) a person who is a party to the dispute has engaged a lawyer or paid agent (the representative) to represent the person in the dispute; and

  (c) under section 596, the person is required to seek the FWC's permission to be represented by the representative.

(2) The FWC may make an order for costs against the representative for costs incurred by the other party to the dispute if the FWC is satisfied that the representative caused those costs to be incurred because:

  (a) the representative encouraged the person to start, continue or respond to the dispute and it should have been reasonably apparent that the person had no reasonable prospect of success in the dispute; or

  (b) of an unreasonable act or omission of the representative in connection with the conduct or continuation of the dispute.

(3) The FWC may make an order under this section only if the other party to the dispute has applied for it in accordance with section 781.

(4) This section does not limit the FWC's power to order costs under section 611.

781 Applications for costs orders

     An application for an order for costs in relation to an application under section 773 must be made within 14 days after the FWC finishes dealing with the dispute.

781A Schedule of costs

(1) A schedule of costs may be prescribed in relation to items of expenditure likely to be incurred in relation to matters that can be covered by an order under section 611, 779A or 780 in relation to an application under section 773, including expenses arising from the representation of a party by a person or organisation other than on a legal professional basis.

(2) If a schedule of costs is prescribed for the purposes of subsection (1), then, in awarding costs under section 611, 779A or 780 in relation to an application under section 773, the FWC:

  (a) is not limited to the items of expenditure appearing in the schedule; but

  (b) if an item does appear in the schedule—must not award costs in relation to that item at a rate or of an amount that exceeds the rate or amount appearing in the schedule.

20 Section 782

  Omit "section 780", substitute "section 779A or 780".

21 Subsection 783(1)

  Omit ", in proceedings arising from the application,".

(12) Schedule 5, page 29 (line 1), omit "Functions of the", substitute "The".

(13) Schedule 5, page 29 (after line 14), at the end of the Schedule, add:

4 Paragraph 632(b)

  Omit "that provides for the office to be held by an FWC Member".

(14) Page 31 (after line 23), after Schedule 6, insert:

Schedule 6A—Registered organisations

Fair Work (Registered Organisations) Amendment Act 2012

1 Section 2 (table item 3)

Repeal the item, substitute:

2 After Part 1 of Schedule 1

  Insert:

Part 1A—Amendments commencing on 1 July 2013

Fair Work (Registered Organisations) Act 2009

39A At the end of Division 1 of Part 2 of Chapter 5

  Add:

142A Model rules for policies relating to expenditure

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in paragraph 141(1)(ca). An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

(2) A notice under subsection (1) is not a legislative instrument.

39B After Division 3 of Part 2 of Chapter 5

  Insert:

Division 3A—Rules relating to disclosure

148F Model rules relating to disclosure

(1) The Minister may, by notice published in the Gazette, issue guidelines containing one or more sets of model rules dealing with the matters referred to in sections 148A, 148B and 148C. An organisation or a branch of an organisation may adopt model rules in whole or in part, and with or without modification.

(2) A notice under subsection (1) is not a legislative instrument.

39C Transitional—model rules

(1) Sections 142A and 148F of the Fair Work (Registered Organisations) Act 2009, as inserted by this Schedule, apply, during the transition period, as if Part 2 of this Schedule had commenced at the same time as this item.

(2) In this item:

  transition period means the period:

  (a) beginning on 1 July 2013; and

  (b) ending on 31 December 2013.

3 Part 2 of Schedule 1 (heading)

  Repeal the heading, substitute:

Part 2—Amendments commencing on 1 January 2014

4 Item 56 of S

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

On this occasion we do agree with the government and the minister, but on nothing else related to this Fair Work Amendment Bill 2013. These amendments have been the subject of discussion. I understand they are broadly supported by industry and were recommendations of the Fair Work Commission. We have no issue with them.

Question agreed to.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the Fair Work Amendment Bill 2013 and move government amendment (1) on sheet BW301:

(1) Clause 2, page 2 (table item 6), omit the table item, substitute:

Again I believe this is broadly agreed in the House. The bill currently before the House provides that relevant provisions will commence on proclamation or not later than six months after royal assent. The amendment clarifies that the provisions will commence on 1 January 2014. This will provide certainty to all stakeholders, including employers, employees and the Fair Work Commission, about the operation and commencement of this important jurisdiction. (Quorum formed)

Question agreed to.

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

by leave—I move amendments (1) to (7) on sheet 1A together:

(1) Schedule 1, page 8 (after line 5), after item 16, insert:

16A Subsection 55(3)

  After "subsection (2)", insert ", except as provided in section 56A".

(2) Schedule 1, page 8, after proposed item 16A, insert:

16B After section 56

  Insert:

56A Flexible working arrangements: no contracting out of enterprise agreements

     None of the following has any effect to the extent that it would be inconsistent with an enterprise agreement:

  (a) an arrangement or agreement made as a result of a request under section 65 (which deals with requests for flexible working arrangements);

  (b) a decision of the FWC of the kind referred to in subsection 598(1) in relation to a dispute about the operation of Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

  (c) any other exercise of a power of the FWC, including an outcome of a process carried out in accordance with subsection 595(2) (which deals with the FWC's power to deal with disputes otherwise than by arbitration), in relation to a dispute about the operation of Division 4 of Part 2-2.

(3) Schedule 1, Part 3, page 9 (after line 27), at the end of the Part, add:

18A After section 65

  Insert:

65A FWC may deal with a dispute about the operation of this Division

(1) The FWC may deal with a dispute about the operation of this Division (including a dispute about whether a refusal of a request under section 65 is on reasonable business grounds).

(2) The FWC may deal with the dispute by arbitration.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with the dispute only on application by any of the following:

  (a) an employee who has made a request under section 65;

  (b) an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (a).

(4) Schedule 1, Part 3, at the end of the Part, add (after proposed item 18A):

18B Section 146 (note)

  Omit "65(5) or".

(5) Schedule 1, Part 3, at the end of the Part, add (after proposed item 18B):

18C Subsection 186(6) (notes 1 and 2)

  Omit "65(5) or".

(6) Schedule 1, Part 3, at the end of the Part, add (after proposed item 18C):

18D Subsection 739(2)

  Omit "65(5) or".

18E Subsection 739(2) (note)

  Omit "65(5) or".

(7) Schedule 1, Part 3, at the end of the Part, add (after proposed item 18E):

18F Subsection 740(2)

  Omit "65(5) or".

18G Subsection 740(2) (note)

  Omit "65(5) or".

Very briefly, I spoke to these amendments during my contribution in the second reading debate. These are simple amendments that would extend and provide a means for enforcing the right that people have under the Fair Work Act to request flexible working arrangements. These amendments would in situations where an employer unreasonably refuses that right allow the employee to take the matter to the Fair Work Commission, where they would be able to balance the needs of the employer, including the operational requirements of the employer, and the legitimate needs of the employee. This is important. It is important that the right to request these arrangements has teeth, otherwise it amounts to little more than a right to have a conversation. That would be the state that the bill would be in if we did not pass these amendments. I think these amendments would have broad support in the community. People are increasingly struggling to balance their work and life arrangements. I commend the amendments to the House.

Ms Anna Burke (Speaker) Share this | Link to this | Hansard source

The question is that the member for Melbourne's amendments be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the ayes in this division, I declare the question negated in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt and Mr Wilkie voting aye.

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

by leave—I move amendments (1) to (3) of sheet 2, (1) of sheet 3, (1) of sheet 4, (1) of sheet 5, (1) of sheet 6 and (1) of sheet 7 together:

(1) Clause 2, page 2 (after table item 4), insert:

(2) Schedule 1, heading, page 4 (line 1), after "Family-friendly", insert ", job security and fairer bargaining".

(3) Schedule 1, page 14 (after line 26), at the end of the Schedule, add:

Part 6—Objects

Fair Work Act 2009

31 At the end of section 3

  Add:

  ; and (h) providing workplace relations laws that enhance job security; and

(i) promoting full employment in Australia; and

  (j) helping working Australians to achieve a better work/life balance.

(1) Schedule 1, page 14, at the end of the Schedule (after proposed Part 6), add:

Part 7—Notice requirements for industrial action

Fair Work Act 2009

32 Subsection 414(5)

  After "engages", insert ", or changes normal operations for the purposes of engaging,".

33 After subsection 414(5)

  Insert:

  (5A) The period of notice for the purposes of paragraph (5)(a) must be at least 3 working days.

(1) Schedule 1, page 14, at the end of the Schedule (after proposed Part 7), add:

Part 8—Orders suspending or terminating protected industrial action: general

Fair Work Act 2009

34 Subsection 423(1)

  Omit "if", substitute "to the extent that".

35 Subsection 424(1)

  Omit "if", substitute "to the extent that".

(1) Schedule 1, page 14, at the end of the Schedule (after proposed Part 8), add:

Part 9—Orders suspending or terminating protected industrial action: requirements

Fair Work Act 2009

36 After subsection 423(6)

  Insert:

Requirement—permitted matters capable of settlement

  (6A) For an order terminating protected industrial action, the FWC must be satisfied that:

  (a) terms to deal with all the permitted matters at issue during bargaining for the proposed enterprise agreement could be included in an industrial action related workplace determination; or

  (b) all the bargaining representatives for the proposed enterprise agreement have agreed to settle all the permitted matters at issue during bargaining for the proposed enterprise agreement by another means by which a binding settlement of those matters might be achieved.

Example:   For paragraph (b), the bargaining representatives might have agreed to conciliation by the FWC and to the inclusion in the proposed enterprise agreement of any terms recommended by the FWC to settle the permitted matters at issue.

  (6B) For an order suspending protected industrial action, the FWC must be satisfied, in relation to any permitted matters at issue during bargaining for the proposed enterprise agreement that cannot be dealt with by including terms in an industrial action related workplace determination, that:

  (a) there is a means by which a binding settlement of those matters might be achieved (if all of the bargaining representatives for the proposed enterprise agreement agreed to settle those matters by that means); and

  (b) if the protected industrial action is employee claim action or employee response action—the bargaining representatives of the employee or employees who are engaging in the industrial action have not agreed to settle all of those matters by that means; and

  (c) if the protected industrial action is employer response action—the bargaining representatives of the employer or employers who are engaging in the industrial action have not agreed to settle all of those matters by that means.

37 Subsection 424(1)

  After "The FWC must", insert "(subject to subsections (1A) and (1B))".

38 After subsection 424(1)

  Insert:

  (1A) The FWC must not make an order terminating industrial action of a kind mentioned in subsection (1) unless the FWC is satisfied that:

  (a) terms to deal with all the permitted matters at issue during bargaining for the proposed enterprise agreement could be included in an industrial action related workplace determination; or

  (b) all the bargaining representatives for the proposed enterprise agreement have agreed to settle all the permitted matters at issue during bargaining for the proposed enterprise agreement by another means by which a binding settlement of those matters might be achieved.

Example:   For paragraph (b), the bargaining representatives might have agreed to conciliation by the FWC and to the inclusion in the proposed enterprise agreement of any terms recommended by the FWC to settle the permitted matters at issue.

  (1B) The FWC must not make an order suspending industrial action of a kind mentioned in subsection (1) unless the FWC is satisfied, in relation to any permitted matters at issue during bargaining for the proposed enterprise agreement that cannot be dealt with by including terms in an industrial action related workplace determination, that:

  (a) there is a means by which a binding settlement of those matters might be achieved (if all of the bargaining representatives for the proposed enterprise agreement agreed to settle those matters by that means); and

  (b) if the protected industrial action is employee claim action or employee response action—the bargaining representatives of the employee or employees who are engaging in the industrial action have not agreed to settle all of those matters by that means; and

  (c) if the protected industrial action is employer response action—the bargaining representatives of the employer or employers who are engaging in the industrial action have not agreed to settle all of those matters by that means.

(1) Schedule 1, page 14, at the end of the Schedule (after proposed Part 9), add:

Part 10—Orders terminating protected industrial action: limits

Fair Work Act 2009

39 After section 424

  Insert:

424A When the FWC must not terminate industrial action

     Despite subsections 423(1) and 424(1), the FWC must not make an order terminating protected industrial action if either or both of the following apply in relation to any employer response action concerned:

  (a) a purpose of the action is to make any application under section 423 or 424 more likely to succeed;

  (b) the action is not a proportionate response in the circumstances.

40 After paragraph 426(5)(a)

  Insert:

  (ab) in the case of employer response action—whether the industrial action is being engaged in for the purposes of making any application more likely to succeed;

(1) Schedule 1, page 14, at the end of the Schedule (after proposed Part 10), add:

Part 11—Repeal of Ministerial declarations power

Fair Work Act 2009

41 Subsection 266(2)

  Repeal the subsection, substitute:

(2) A termination of industrial action instrument in relation to a proposed enterprise agreement is an order under section 423 or 424 terminating protected industrial action for the agreement.

42 Paragraph 413(7)(b)

  Repeal the paragraph.

43 Division 7 of Part 3 -3

  Repeal the Division.

Again, very briefly, I addressed these matters in my speech in the second reading debate. These amendments would address some of the issues that have arisen in respect of the operation of the Fair Work Act. In particular, for nurses and people in the public sector where they face powerful employers—workers, for example, in areas like Qantas—it would provide them with some protection against powerful employers tactically using industrial action or tactically dragging out negotiations. It would give the Fair Work Commission greater power to resolve the whole of disputes and ensure that, from the perspective of powerful employers, they could not do these things tactically—for example, by prolonging disputes or by grounding a fleet. I commend the amendments to the House.

Question negatived.

by leave—I move amendments (1) and (2) of sheet 8 together:

(1) Clause 2, page 2 (after table item 5), insert:

(2) Page 15 (after line 11), after Schedule 2, insert:

Schedule 2A—Family violence

Fair Work Act 2009

1 Section 12

  Insert:

  experience of family violence includes:

  (a) a current or past experience of family violence; or

  (b) the experience of providing care or support to a member of a person's immediate family or household who is experiencing family violence; or

  (c) an experience of family violence imputed to a person.

2 Section 12

  Insert:

  family violence: see section 17AA.

3 After section 17

  Insert:

17AA Meaning of family violence

(1) Family violence is violent, threatening or other behaviour by a person that coerces or controls a family member, or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to) the following:

  (a) physical assault;

  (b) a sexual assault or other sexually abusive behaviour;

  (c) economic abuse;

  (d) emotional or psychological abuse;

  (e) stalking;

  (f) kidnapping or deprivation of liberty;

  (g) damage to property (whether or not the victim owns the property);

  (h) causing injury or death to an animal (whether or not the animal belongs to the victim);

  (i) behaviour that exposes a child to behaviour of the kind described above.

4 Section 351

  Omit "or social origin", substitute ", social origin or experience of family violence".

5 After paragraph 772(1)(h)

  Insert:

  ; (i) experience of family violence.

Briefly, I referred to this in my speech in the second reading debate. This bill proposed by the government makes some welcome moves to extend protections to people who have experienced family violence. In particular, I applaud the government for extending the right to request flexible working arrangements. What my amendments would do is strengthen the protections against adverse action for victims of family violence. What this would mean is that someone who is in a position where they have experienced family violence or are looking after someone who has experienced it, who perhaps then makes a request of their employer, or perhaps not, are protected against adverse action from their employer. For example, if someone is not in a position to turn up to work on a particular day because they have been the victim of family violence, then it would be prohibited to take adverse action against them that might otherwise be lawful. This amendment has the support of domestic family violence campaigners. It is something that I hope receives sympathetic attention from the government and the opposition.

Ms Anna Burke (Speaker) Share this | Link to this | Hansard source

The question is that the member for Melbourne's amendments be agreed to.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the ayes in this division, I declare the question negated in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question negatived, Mr Bandt and Mr Wilkie voting aye.

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

by leave—I move amendments (1) and (2) on sheet 9 as circulated in my name together:.

(1) Clause 2, page 2 (after table item 10), insert:

(2) Page 29 (after line 14), after Schedule 5, insert:

Schedule 5A—Increases to compulsory superannuation not to affect minimum wage reviews or orders

Fair Work Act 2009

1 At the end of section 285

  Add:

(4) In exercising its power in an annual wage review:

  (a) to make determinations referred to in paragraph (2)(b); and

  (b) to make a national minimum wage order;

the FWC must disregard any increase in relevant superannuation contributions that takes effect after this subsection commences.

(5) Relevant superannuation contributions are contributions to a superannuation fund made by an employer to the extent that one or more of the following applies:

  (a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

  (b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 292-175 of the Income Tax Assessment Act 1997) of the employee;

  (c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory.

As we have seen recently, when the Fair Work Commission assesses the minimum wage it takes into account potential superannuation rises for employees. This amendment would have the effect of saying that would not be taken into account for future increases to the minimum wage. I accept that for wages above the minimum wage it may be appropriate to consider whether to trade off future superannuation increases against wage increases. But for those who are on the minimum wage, when the minimum wage is so low, that trade-off should not be made because they are probably going to retire on the pension and not be reliant on their superannuation in the same way as others. So they need a wage increase now and that should be taken into account by the Fair Work Commission.

Question negatived.

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (27) on sheet 1 as circulated in my name:

(1) Schedule 3, item 1, page 16 (line 6), omit "allows a worker", substitute "allows a worker or employer".

(2) Schedule 3, item 3, page 16 (table heading), omit "Workers bullied at work", substitute "Workers or employers bullied at work".

(3) Schedule 3, item 4, page 16 (line 21), omit "workers bullied", substitute "workers or employers bullied".

(4) Schedule 3, item 5, page 17 (line 1), omit "workers bullied", substitute "workers or employers bullied".

(5) Schedule 3, item 6, page 17 (line 5), omit "Workers bullied", substitute "Workers or employers bullied".

(6) Schedule 3, item 6, page 17 (line 8), omit "a worker who", substitute "a worker or employer who".

(7) Schedule 3, item 6, page 17 (line 9), omit "stop the bullying", substitute "stop the bullying after seeking advice from the Fair Work Ombudsman or Safe Work Australia or such other organisation as prescribed by the regulations".

(8) Schedule 3, item 6, page 17 (line 12), omit "Stopping workers", substitute "Stopping workers and employers".

(9) Schedule 3, item 6, page 17 (line 14), omit "A worker who", substitute "Subject to subsection (1A), a worker or employer who".

(10) Schedule 3, item 6, page 17 (line 15), omit "at work", substitute "at work by a worker, employer or official of a registered organisation".

(11) Schedule 3, item 6, page 17 (after line 15), after subsection 789FC(1), insert:

  (1A) Prior to applying to the FWC for an order under section 789FF, the worker or employer must seek preliminary advice from one of the following organisations confirming that the behaviour in question does, or may, constitute bullying and that alternative remedies have been considered:

(a) the Fair Work Ombudsman;

(b) Safe Work Australia;

(c) an occupational health and safety organisation of a State or Territory prescribed by the regulations pursuant to subsection (1B).

  (1B) The Governor-General may make regulations prescribing an occupational health and safety organisation of a State or Territory. However, if the Governor-General makes the regulation, the regulation must include at least one occupational health and safety organisation from each State and Territory.

(12) Schedule 3, item 6, page 18 (line 3), omit "worker bullied", substitute "worker or employer bullied".

(13) Schedule 3, item 6, page 18 (line 4), omit "A worker", substitute "A worker or employer".

(14) Schedule 3, item 6, page 18 (line 5), omit "the worker", substitute "the worker or employer".

(15) Schedule 3, item 6, page 18 (line 8), at the end of subparagraph 789FD(1)(a)(ii), add "or".

(16) Schedule 3, item 6, page 18 (after line 8), after subparagraph 789FD(1)(a)(ii), insert:

     (iii) an official of a registered organisation;

(17) Schedule 3, item 6, page 18 (line 9), omit "the worker", substitute "the worker or employer".

(18) Schedule 3, item 6, page 18 (line 10), omit "group of workers of which the worker is a member", substitute "group of which the worker or employer is a member".

(19) Schedule 3, item 6, page 18 (line 33), omit "a worker", substitute "a worker or an employer".

(20) Schedule 3, item 6, page 19 (line 2), omit "the worker", substitute "the worker or employer".

(21) Schedule 3, item 6, page 19 (line 4), omit "the worker", substitute "the worker or employer".

(22) Schedule 3, item 6, page 19 (line 6), omit "order it considers appropriate", substitute "order it considers appropriate including an order revoking a union right of entry permit".

(23) Schedule 3, item 6, page 19 (line 8), omit "the worker", substitute "the worker or employer".

(24) Schedule 3, item 6, page 19 (line 15), omit "the worker", substitute "the worker or employer".

(25) Schedule 3, item 6, page 19 (line 18), omit "the worker", substitute "the worker or employer".

(26) Schedule 3, item 6, page 19 (line 30), omit "a worker", substitute "a worker or employer".

(27) Schedule 3, item 6, page 19 (line 31), omit "the worker", substitute "the worker or employer".

These amendments relate to workplace bullying and many speakers on this side of the House have alerted members opposite in the government to the ridiculousness of including provisions on workplace bullying in a fair work bill.

There is a plethora of state and also federal agencies that can take complaints about workplace bullying. There is a Work Safe Australia in every single state and territory. It is bizarre that the government should have decided that they want to include a whole new subject matter in a bill to amend the Fair Work laws of this country that actually has nothing to do with that. There are provisions already underway with the government's own Safe Work Australia. Why would you introduce a new mechanism about a new subject that is already under discussion for legislative debate with Safe Work Australia into a bill that is designed to look at the Fair Work review? We take very seriously the issue of workplace bullying. We noted with interest the House of Representatives committee's report into the issue, but we are really disappointed that the government did not see fit to deal with the issue in separate legislation.

We support the proposals to address workplace bullying, but only if it is clear that the worker has first sought help and impartial advice from an independent regulatory agency and, further, that these provisions are expanded to include the conduct of union officials towards workers and employers. The amendments that I move achieve this objective and I would encourage members on the crossbenches to support them. It is important to recognise that these amendments have already been supported by the government's handpicked lead reviewer of the Fair Work Act who was reported in Workplace Express on 14 May as having said the coalition's proposal that bullying claims go through an independent regulatory agency before being lodged with the Fair Work Commission was a great way to do it.

In fact, the minister just moved an amendment that we agreed to that said that the workplace bullying activities of the Fair Work Commission would not start until 1 January because there is absolutely no way that the Fair Work Commission can get together a whole unit to deal with the subject matter that is not really in its purview in the next couple of weeks. So the government acknowledges itself that it cannot get its act together before 1 January and has extended the period by six months. The most sensible thing would be to filter out complaints of bullying made in the workplace through the existing agencies and the existing structures which include state OH&S law as well as the common law. Then, if there is no resolution, maybe bring it to the Fair Work Commission.

As well as that, it is perfectly obvious to everyone in this place that some of the biggest bullies in the workplace are union bosses. So we are saying that the bill should be amended to include bullying by union bosses of workers and employers in the workplace. Every speaker on this side of the House has brought evidence to the parliament in this debate of exactly that. These are perfectly moderate amendments and I commend them to the House.

Bill Shorten (Maribyrnong, Australian Labor Party, Minister for Financial Services and Superannuation) Share this | Link to this | Hansard source

The government will not be agreeing to these amendments. They are a stunt. The opposition spokesperson in the other place has been advised about the operation of the legislation in briefings by my department.

Bob Katter (Kennedy, Independent) Share this | Link to this | Hansard source

I agree with the last part of what the member for Farrer was saying. Obviously, coming out of mustering camps and having worked as a labourer on many occasions in the mines, I have difficulty here because what one person may construe as bullying may be another way that people just simply talk to each other in situations of very high tension and very high danger. We are not people to equivocate in the bush and in the mines, I can assure you. So the definition worries me greatly and I have had difficulties with no part of the ALP proposal except in this area. I would agree with the first part of the opposition's amendments but certainly not the second.

Ms Anna Burke (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Sussan Ley (Farrer, Liberal Party, Shadow Minister for Childcare and Early Childhood Learning) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (3) of sheet 2 together:

(1) Clause 2, page 2 (table item 7), omit the table item.

(2) Schedule 4, page 20 (line 1) to page 28 (line 29), omit the Schedule.

(3) Schedule 7, item 1, page 34 (lines 14 to 29), omit Part 5.

I will speak briefly about the amendments, but what is more interesting and important in the case of these amendments is the process. The government and the opposition struck an agreement to remove the expanded right-of-entry provisions from the Fair Work Amendment Bill yesterday. That agreement was still in place when we all woke up this morning and, as far as I know, it was in place at lunchtime today. But in a hasty scramble, only an hour before question time, the government informed us that in fact the very amendments that they were about to move, to take the right-of-entry provisions out of this bill, were not going to be moved, and that the bill as originally circulated by the government was going to stand.

So the government's own amendments were pulled at the last minute. Why could that be? Who benefits from union right of entry, or should I say expanded right of entry? Unions, of course. What dirty deal must have been done? What insistence was there that more money be allocated to the union coffers in this last few hours before these right-of-entry provisions hit the table to make this minister and this government scramble away from them and give in to the union bosses that hold them to ransom?

We have referred to the Prime Minister's promise of no expanded right of entry. Right-of-entry provisions in this country today are very strong. They are very firm. They allow unions way too much, and we have said that we will draw them back. Only today I heard of an example of a childcare centre in Queensland where the union, United Voice, desperate to sign up new members, barged into the lunch room, looked at the sign-on sheet and said: 'We haven't met these members of staff. Who are they? Where are they? Why can't they come in? Why can't we sign them up to the union?'

What we are moving with these amendments is to take out the right-of-entry provisions that the government had agreed with us to do. We are concerned about joy-rides and lunch room invasions; the default provisions in this bill say that the union can choose the lunch room as the default meeting place. Only 13 per cent of Australian workers belong to unions; the other 87 per cent have to have their lunchtime and their quiet time interrupted in this manner.

I strongly commend these amendments to the House and I look forward to the support of the crossbenchers.

Debate interrupted.