Christian Porter (Pearce, Liberal Party, Minister for Social Services) Share this | Link to this | Hansard source

I move:

That the amendments be agreed to.

I will take this opportunity to make a few comments with respect to the bill in the form that it is in before us. The Fair Work Amendment Bill 2014 has returned to the House of Representatives from the Senate.

The measures that the House us now being asked to agree on are at the very least a significant first step in bringing balance back to the workplace relations system. That is, I think, an important initial point. A further important point is that all the measures that were contained in the original Fair Work Amendment Bill 2013 were clearly outlined in the coalition's election policy at the 2013 election. We obviously take the view that they were sensible, fair and balanced reforms. They were very well known at the point they went to a full general election.

That bill progressed. The Senate has agreed to a number of the measures in the bill. The government just notes here its appreciation for the positive and constructive approach that was taken by the Senate crossbenchers in working with the government to pass at least some of the measures that were contained in the Fair Work Amendment Bill 2014 in its full form. Those measures that have been agreed are now being returned in the amended form of the bill.

I just want to make the point, which has previously been made by the Minister for Employment and in the Senate, that the government remains absolutely committed to its election policy and indeed intends to continue discussion with the crossbenchers on the benefits of those measures that were contained in the full version of the bill but which are not proceeding in this amended version. The government looks forward to continuing to work constructively with the Senate crossbenchers to achieve that ultimate goal.

Now I might make a few comments about the changes that have been agreed and that are now before the House. The changes are essentially to the greenfield agreement making process. The effect of the changes is that businesses can now enter negotiations with a greater confidence. The start of a new project will not be at any point held to ransom. The businesses will now have the certainty needed to create jobs to seek investment partners and break new ground on projects.

The Fair Work Commission as a matter of practice will now be able to act as a relief valve and approve a greenfield agreement, subject to it passing all statutory tests, if agreement with the relevant union or unions has not been reached within a set time period of six months. That improved process means that projects will not be held to ransom; there will not be the use of existing processes to achieve only the outcome of delay. That will mean that greenfield projects, which are very important to the Australian economy, can get off the ground quicker and jobs can likewise be created in greater number and quicker.

The bill will also close a loophole. That loophole allowed unions to in effect strike first and talk later. The government takes the very firm view that it is a matter of some common-sense reform to end that process and that that will help to ensure that costly industrial action is not taken prematurely. Employees can still take protected industrial action but bargaining will now need to have actually started first.

Some further notable points about the bill in its amended form before the House are that the bill will also first provide that an employer must not refuse a request to extend unpaid parental leave unless the employee has been given a reasonable opportunity to discuss that request. Secondly, the bill as it is before the House will ensure that the value of unclaimed wages recovered for unpaid workers by the Commonwealth is maintained. These are important changes. Indeed these changes that I have just noted were themselves supported by findings of Labor's own Fair Work review in 2012.

My final comment is that, in making these changes to the Fair Work Act, the government has removed some of the existing impediments to productivity and growth. The reforms will help build a more stable, fair and prosperous future for Australian workers, businesses and the economy.

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

I rise to oppose the amendments and put on the record the federal opposition's view on these matters. In fact it has been the case that in the long period that this bill has been before the parliament we have had many discussions. We have had discussions with the government. We have had discussions with the crossbenchers. We have had discussions with stakeholders—employers and unions—to see whether we could find a reasonable accommodation of views in light of the amendments or the provisions within the existing bill or the original bill.

The original bill, of course, was much broader than this particular bill. It went to a whole range of areas, including right of entry, transmission of business and the way in which you might change individual flexibility arrangements in workplaces. The government found, of course, that there was no appetite in the Senate from non-government members to accede to the government's preference to support that particular bill, so the former Minister for Employment failed in his efforts to convince a sufficient number of senators to have that bill pass the Senate.

That is not surprising. Notwithstanding the comments made just now by the Minister for Social Services, I would have to disagree that the bill is a reflection of the commitments made prior to the election. Whilst there were some references to some of the matters and indeed there were references to, for example, enacting legislation consistent with recommendations of the previous government's review of the Fair Work Act, the fact is that the provisions within this bill and indeed the original bill do not reflect the recommendations as outlined by that review that was undertaken by the previous government. It is disingenuous of the government to suggest that the bill's provisions reflected the recommendations that were part of the former Labor government's review. They were in part, but, as always, you have to look at the detail when it comes to such matters. When it comes to industrial relations, you definitely have to look at the detail when it comes to the Liberal government looking to enact change.

We know that because its history is replete with transgressions in this area. One that stands out in particular—and I was in the place at the time—was when the former Prime Minister John Howard walked in after the 2004 election and made a ministerial statement. He made it himself. It was on what he wanted to do—

Nick Champion (Wakefield, Australian Labor Party) Share this | Link to this | Hansard source

How did that work out?

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

It didn't work out particularly well over time! At the time, he was a very excited Prime Minister. He came in and decided to announce fundamental changes—radical changes, I think you could argue—to industrial relations laws in this country that ultimately became pejoratively known as Work Choices. None of those provisions, of course, were in any way communicated to the electorate prior to the 2004 election.

It is fair to say that the government has been so timid in this area because it has been traumatised by Work Choices and so has taken it a little softer, but the intent is always there. The malevolent intent of the government when it comes to attacking working people in this country never ceases to amaze me. That is why I am always sceptical when I hear the government say that, for example, there are to be changes that reflect the expressed commitments made before the election. Of course, when you look at the detail, that is not the case.

With respect to some of the matters, I have to say I agree with the minister that, for example, looking at greenfield agreements is an important matter. That is why I spoke to APO, large mining companies, unions relevant to that particular sector and academics who are experts in industrial relations legislation. We also looked at what we could do to reconcile any outstanding differences wherever possible. We were open-minded and sought to genuinely listen to the concerns of industry and see whether we could find a way forward. Whilst we do disagree with these amendments, I wanted to put on the record the efforts that we made without prejudice to the crossbenchers in order to see if we could facilitate some resolution to these matters.

With regard to greenfields, we understood the concerns of industry about the indefinite nature of greenfield agreements. We understood that there may be a way forward that could provide greater certainty for the mining industry and for industries that use these vehicles for new sites, new investment and, most importantly, new jobs. Therefore, we were open-minded to the submissions made to us in relation to these areas.

As a result, we put to the government and indeed to the crossbenchers within the Senate a mechanism that I think was balanced in that we believed it was a fairer proposition than what was being put forward by the government. Let me go to the greenfield agreements provisions that were in the government's proposed legislation.

The significant legislative change to greenfield agreements would have the effect that this would establish a new process for negotiation of a single enterprise greenfields agreement by extending good-faith bargaining to negotiations of these agreements and provide a three-month negotiation time frame for the parties to reach agreement. An employer would be able to apply to the Fair Work commission for approval of its agreement where agreement cannot be reached with the relevant employee organisation in that period. The existing approvals test under the Fair Work Act would be retained with a new requirement to ensure that the agreement is consistent with prevailing industry standards.

You might have picked up the concern I might have with such an idea: you would call something an agreement when there is actually no agreement. The actual instrument that was referred to in this proposed provision would be a document that was drafted by the employer. Yes, there would be a very limited period of time to seek to have discussions around that document and, provided it passed what is an ill-defined term—the 'prevailing industry standards'—it would go ahead as a ratified industrial instrument where the Fair Work Commission would have no choice other than to approve it irrespective of the fact that it is not agreed and irrespective of the fact that it was entirely written by the employer.

The government's proposed amendments to greenfield agreements, in short, paved the way for employers to essentially negotiate with themselves. That is the fundamental inequity of the provision. The opposition opposes these amendments, because the bargaining process will not be improved by simply removing one party—namely, unions—from the negotiating table, where these amendments give employers the absolute advantage in negotiating.

After an employer agrees to bargain with an employer organisation, the employer at any time could issue notice to commence a three-month notified negotiation period. This countdown clock does not stop once it starts. An employer, in effect, could essentially walk away from the negotiating table and simply wait for those three months to expire and at the end of those three months, having merely looked in the mirror and had a good chat, the employer and only the employer could take a proposed agreement the Fair Work Commission for assessment and approval. Now where is the equity in that? Where is the genuineness in allowing the parties to reconcile outstanding differences? How could it possibly be reasonable that one party to a two-party agreement has the entire authority to determine the outcome if you cannot reach agreement? Is not a very strong position to be in. If you are the other party, you are wondering how much leverage do I have here? You do not have a lot of leverage because all the other side has to do is to say, 'Well, I thought about that, genuinely I have, but I don't think I can accede to that request,' and do that for three months and then, lo and behold, head it off to the Fair Work Commission—

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

Order! the member's time has expired—are you seeking to extend?

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

I am indeed. The minister wants to stay here. He is acting on behalf of a very good friend of his, Senator Cash. He wants to hear all of the arguments. I am sure she can actually, in some way, provide support to him in his portfolio.

The fact is it is an unreasonable provision to allow only one side of the bargaining table to have unilateral capacity to determine the outcome of an agreement subject to one ill-defined term—yet to be tested either in the commission or the courts—'the prevailing industry standard'.

It would be reprehensible and, indeed, it would be against the principles that the Labor Party hold when it comes to industrial relations to allow one party to make those decisions. We would not allow that on either side of the bargaining table and yet we have, of course, the Abbott-Turnbull government proposing such a reform and such a change. But as I made clear, I do understand and I have understood some of the concerns that the industry has raised. In keeping with those concerns, we did speak with the government and for a longer period with the crossbenchers to find some alternative position. I want to thank the senators who I was able to engage with. Whilst, ultimately, they supported the government in this regard, I believe I got a good hearing from the senators that I did speak with: Senator Madigan, Senator Muir and Senator Lazarus. I think it was unfortunate that they did not accede to our position. I know that Senator Lambie did not support the government's position but I wanted to speak to her. I was disappointed—I get on very well with Senator Xenophon, I did when I was in government as a minister—but it was unfortunate that we did not get an opportunity speak, because he quite often listens to reason.

The ideas that we were putting forward were reasonable and fair, unlike the government's amendments that are currently before this place. They were fair because they were designed to balance the interests of prospective workers and employers in making greenfield agreements. Remember this, when we are talking about greenfield agreements, there are no existing employees in a position to put their hand up and say, 'I'm not happy with that.' So it is entrusted to organisations of employers to represent their future interests upon being employed.

The opposition, originally, resisted the provisions, but we then sought amendments to retain the government's proposal to apply good faith bargaining to greenfield agreements, so we did I think converge. I do not know, maybe we started this new politics, because I was talking about this even before Malcolm knifed Tony. They allow for arbitration as a last resort using the Fair Act Work infrastructure of workplace determinations—in other words, we understood there needed to be a defined period, so you could not have the matter go on indefinitely. When I spoke with the large companies and others, their bigger concern was this thing could go on indefinitely. That would, of course, lead to uncertainty which would quite possibly make it more difficult to attract investment. What we said is, 'Yes, we're happy to find a time frame too, but'—and this is a very significant difference between Labor and the government—'if there were to be a resolution when the two parties could not resolve the matter, this would allow for arbitration as a last resort by the Fair Work Commission.'

The amendments also encourage bargaining and the making of agreements. The opposition is proposing to keep a time limit on reaching agreement through a notified negotiation period proposed by the government, but extending it from three months to, I think, a more reasonable time frame of six months. We do not think that is unduly long. Indeed, the six months was an idea that emanated from the crossbenchers. They proposed six months to the government.

The Fair Work conciliation powers would also be strengthened in order to ensure that we could have a better role for the Fair Work Commission to play in discussions before any ratification of a greenfield agreement. We did that by enabling the Fair Work Commission—we would have if our amendments had been accepted—to conciliate on their own motion if it is in the public interest to do so. The Fair Work Commission can be proactive (Extension of time granted) and play a role before the matter is even resolved by way of arbitration. I think it is also fair to say we would like to see the parties resolve these matters themselves. We invented collective bargaining, something the other side do not like. We support the parties taking the responsibility in determining matters wherever possible but we understand there are occasions in which the Fair Work Commission, the independent umpire, can play a very positive role and we believe that is what would have happened here if our amendments had been accepted. Greenfield agreements will be longer than greenfield workplace determinations, again, to encourage agreement making rather than arbitration—so, again, providing an inbuilt incentive for parties to resolve their differences and make agreement without recourse to a third party.

Finally, bargaining will be encouraged by ensuring that the party who wishes to access arbitration has done their best to reach agreement. The opposition's amendments also provide for the content of a greenfields workplace determination to be decided consistent with the existing laws around workplace determinations. A greenfield workplace determination will, amongst other things, include: terms that have been agreed to by the parties; terms that deal with the matters in dispute; and model terms in relation to flexibility, consultation and dispute resolution.

We believe sincerely that we had put what was a far more reasonable, far more equitable proposition to amend the government's proposed legislation in order to ensure that we could maintain some fairness in the system. We relinquished the position of allowing for this indefinite problem that was associated with some greenfield agreement negotiations. We had a time frame that could be resolved by the Fair Work Commission if required. I should have added too that the greenfields workplace determination must still comply with the better off overall test, and the National Employment Standards, and the Fair Work Commission is required to consider the behaviour of the parties in trying to reach agreement in deciding whether to make a determination in respect of the content of the determination.

We believe that it would have been a far better outcome if the amendments that were being proposed by the opposition in the Senate were accepted in relation to greenfields. We do not support the contention of the minister that the proposal with respect to greenfields is a reflection of what was put to the electorate before the election. We also do not believe it is fair to characterise the current amendments as outlined by the government and supported by the government to be a reflection of the Fair Work review. We think that is not accurate and we would say, therefore, the government does not have the mandate it suggests it has to make changes here.

I think far more fundamentally, even above and beyond the fact that it is not something the government had an imprimatur to do, as they did not make this specific commitment in this way prior to the election, it is just fundamentally unfair that you can have negotiations between two parties and both parties know when they enter those negotiations that one side gets to determine all matters with only one condition, which is the prevailing industry standard. How does that lend itself to good faith bargaining? How can you possibly have good faith bargaining when one side can just sit on its hands and not genuinely seek to find solutions? It is a pretty good position to be in if you are the employer but if you are the organisation representing prospective workers, it is a very weakened position. It is therefore not in keeping with what collective bargaining is about, which is allowing for all the parties to genuinely be in a position on a level playing field negotiating outcomes not only in their mutual interests but also of course in the interests of the people that they represent at the table. For that reason, we have had some significant problems with that.

Christian Porter (Pearce, Liberal Party, Minister for Social Services) Share this | Link to this | Hansard source

I move:

That the question be put.

Question agreed to.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to. Is there a speaker from the opposition?

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

I am not accepting the motion. I am going to keep talking on this matter because it should not be shut down; there are other amendments that have not been referred to yet in the consideration in detail stage.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

A vote was taken.

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

And we said 'no'. We called out. In fact, we suggested you did not have two so I will continue to talk on this bill. The motion was not accepted.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The House has moved on to another matter so we may consider this at another time.

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

So what happened to the motion that was put?

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

I believe that it was carried.

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

But three of us said 'no'.

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

Mr Deputy Speaker, I rise on a point of order. To assist the House, given that we appear to have had a vote—there should have been a call for a division, and there was not—if you want to go back a few moments we will give leave for that to happen. Then everything that just happened will be in its normal, orderly process. Can I suggest we take that path?

Christian Porter (Pearce, Liberal Party, Minister for Social Services) Share this | Link to this | Hansard source

I move:

That the question be put.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the question be put.

The DEPUTY SPEAKER (19:15): The question is that the amendments be agreed to.