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

I rise to speak on the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017. Two of the three changes to the Fair Work Act contained in this bill relate to recommendations made by the Productivity Commission, the third of which was made by Justice Heerey over 12 months ago. The abolition of four-yearly reviews is a partial response to recommendation 8.1 of the Productivity Commission report into workplace relations. The provisions in the bill which allow the Fair Work Commission to overlook minor technical or procedural errors when approving an enterprise agreement where those errors are not likely to disadvantage employees respond to recommendation 20.1 of the Productivity Commission report.

The PC report into Australia's workplace relations system was handed down to the Turnbull government on 30 November 2015 and was publicly released on 21 December of that year—almost one and a half years ago. I have to say that the government has been very tardy in responding to that report given the time that has elapsed. Really, where has the government's response been in all of that time? How would the Australian people know whether or not the government agrees with its own Productivity Commission recommendations? You might recall that the minister failed to even make any preliminary responses to the recommendations and therefore went into the next election, the election of last year, without any position on the Productivity Commission report that the government had commissioned when elected in 2013.

The government have never responded to the Productivity Commission report; not before the election and not since. It would seem that the only reason they have bothered with the changes put forward in this bill is that the unions and employer groups have pushed for them to do so. As with almost everything else, this is a do-nothing government—a lazy, incompetent, do-nothing government—and the only reason they have responded is that there has been a bipartisan position of employers and unions suggesting there should be some amendment—a significant amendment, I would add—to the Fair Work Act. Even then, the bill has had to be amended because of stakeholder concerns. Not only did they seek to predicate the basis of this bill upon the request of the ACTU, Ai Group, ACCI and others; there have also been problems associated with the original construction of the bill, and therefore amendments will be made to this bill, as I understand it, by the government and indeed in some cases supported by the opposition.

While I am debating this matter—just in case I forget; I have done it before!—I seek to move a second reading amendment, which will be seconded by the member for Hunter. I move:

That all the words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House calls on the Government to:

(1) abandon its support of the decision of the Fair Work Commission to cut penalty rates because it will mean nearly 700,000 Australians will have their take home pay cut by up to $77 a week; and

(2) legislate to prevent the decision from taking effect to stop Australians from having their penalty rates cut".

The Fair Work Commission must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions. In doing so, the Fair Work Commission must take into account a number of factors, including the need to ensure a simple, easy-to-understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards. One of the mechanisms by which this occurs is a four-yearly review of awards. The other mechanism is through applications to vary awards, which may be made by employers or employees.

Employee and employer groups have joined in their concern that the ongoing four-yearly reviews are a significant drain on the resources of the Fair Work Commission and upon the parties. Unfortunately, the current four-yearly review has been on foot for three years and is not scheduled to finish before the end of this year. This is running right up to the mandated start date of the next four-yearly review, which is next year.

Labor are always open to ensuring that procedures of the Fair Work Commission achieve their intended aims. If the four-yearly review process does not assist in achieving the modern award objective because it has become too burdensome then we will support appropriate amendments to the act. The opposition, however, are concerned to ensure that removing the four-yearly review in the manner proposed in this bill does not have unintended consequences. The government has asserted that, whilst the abolition of the four-yearly review removes the mechanism for a holistic review of modern awards, the process of variation of modern awards by application will continue.

It is very important that modern awards are able to continue to be reviewed to ensure that they meet the modern award objective and that this is able to be done through a process where workers, unions and employers have equal access and equal standing. This is why the opposition, while broadly supportive of the intent of the legislation that is being proposed, agrees with the additional comments from Labor senators on the Senate legislation committee, recommending amendments. Labor are pleased that the government has accepted our position and will move amendments in consideration in detail to ensure that the current four-yearly review processes described as 'award stage' and 'common issues' stage can be completed.

Labor also believes that the provisions in the bill that require that the Fair Work Commission be constituted by a full bench to make, vary or revoke a modern award should be removed. There is no need for minor technical variations to awards to be heard before a full bench. This will have resourcing implications for the commission and will make it more difficult to vary awards. Labor will move these amendments in the Senate.

The bill also purports to give the Fair Work Commission the power to approve an enterprise agreement which would have been genuinely agreed to but for minor technical or procedural problems if the employees covered by the agreement were not likely to have been disadvantaged by these errors. The Productivity Commission and the government rely on the well-known example where it is suggested that an enterprise agreement was rejected because the employer stapled additional pages to the notice of employee representational rights form. Other well-known technical errors include using company letterhead and putting the incorrect phone number on the notice.

While Labor are generally supportive of the intent of changing the act to allow genuinely minor or technical procedural defects to be forgiven, we have taken the position that the bill is deficient because the wording of the relevant provisions is ambiguous. Specifically, we are concerned that the use of 'disadvantaged' in proposed section 188(2) does not adequately reflect the intent of ensuring the enterprise agreements are genuinely agreed to. So Labor are pleased that the government has accepted our argument about the drafting flaws and will move an amendment to make it clear that minor procedural deficiencies can be overlooked only if they did not prevent employees being informed of their right to be represented by a bargaining representative and other procedural requirements.

The final change provided for in this bill is to extend the complaint-handling powers of the Minister for Employment and the President of the Fair Work Commission to the Fair Work Commission members who formerly held office in the Australian Industrial Relations Commission and to apply the Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 in relation to Fair Work Commission members. You might recall that this matter, quite famously, became an issue after the minister appointed Justice Heerey to review the conduct of the former senior vice-president Michael Lawler, who made a series of allegations and comments on an ABC program, which called into question his conduct and indeed whether in fact he had failed to fulfil his obligations as an officer of the commission. And there were difficulties for the president and for the Fair Work Commission to deal with that and other forms of conduct by the former officer of the commission.

These are sensible changes and should have been introduced a long time ago. But this is another example of the government sitting on its hands for an extraordinarily long period before acting. Justice Heerey's report into the Michael Lawler saga—you might remember he was an officer who was appointed to the commission by the former Prime Minister, Tony Abbott—was tabled in the Senate on 15 March last year. More than 12 months have passed and we are only now seeing the legislative response recommended by Justice Heerey. I have to say that Justice Heerey conducted that review very quickly, expeditiously and professionally, but the government failed to respond adequately in a reasonable period. Nonetheless it is here now and contained within the bill and we support the provision as outlined.

But we have to say that there were concerns about that, and we wonder whether in fact it was because of the attempts by the government to distance itself from its response to that review and the disgraceful behaviour of Mr Lawler, who was appointed, as I say, by the former Prime Minister, Tony Abbott, when he was Minister for Employment. Labor believes it is important to acknowledge Mr Heerey's report as it indeed vindicates the actions and the conduct of the Fair Work Commission and, in particular, the manner in which President Iain Ross dealt with that challenging situation.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Is the amendment seconded?

Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Minister for Agriculture) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

The original question was that this bill be now read a second time. To this, the honourable member for Gorton has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. If it suits the House I will state the question in the form that the amendment be agreed to. So the question now before the House is that the amendment be agreed to.

Lisa Chesters (Bendigo, Australian Labor Party) Share this | Link to this | Hansard source

In the few minutes that I have I would like to say that it is quite surprising that it has taken so long for this bill, the Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017, to come before the House. A lot of us remember in the last parliament this government declaring with great fanfare that they were going to review the Fair Work Act and declaring that they were going to get out there and give the power back to employers and restore the balance in the Fair Work Act. The Productivity Commission actually came to Bendigo and asked lots of questions about penalty rates and they were actually pushing the idea that penalty rates needed to be cut. They spent a day in Bendigo and they went to a lot of places. One of the recommendations they made was around the awards and how often they should be reviewed. Since the Productivity Commission handed down their report we have virtually seen nothing from this government. They have sat back and they have allowed Fair Work to go ahead and cut penalty rates. It is 11 days now until that pay cut kicks in.

But the government have finally moved on this issue about reviewing the award every four years. When you have a situation where the union movement, the ACTU—the peak union body—is recommending in accordance with the Productivity Commission that the four-year mandatory review be scrapped and when industry groups like AIG and employees are recommending that it be scrapped, you would think that it would be done pretty quickly and that the government would have said, 'Great; we've received the report and we'll immediately proceed to do that.' But that was not the case. We have seen the government drag this out and finally, now, it has come before the House. It is disappointing that, when there is agreement in the Fair Work space, the government sit back and do nothing. It is similar to how they have behaved around penalty rates.

I support the amendment that has been moved by the member for Gorton around penalty rates, and I just want to remind people in this House what is about to happen. Seven hundred thousand workers—people in hospitality, people in retail, people in pharmacy—will have their penalty rates cut in 11 days. We are talking about some retail workers losing up to $6,000 a year because their Sunday penalty rates will be cut. Equally, people on the highest incomes—including the Prime Minister—will actually receive a tax cut of about $6,000 a year. Yet—

Mark Coulton (Parkes, Deputy-Speaker) Share this | Link to this | Hansard source

Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the member for Bendigo will be given an opportunity at that time to continue her remarks.