Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and move government amendments (1) to (150) as circulated together.

FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be Moved on Behalf of the Government

(Circulated by the authority of the Minister for Employment and Workplace Relations,

the Hon Tony Burke MP)

AMENDMENTS T O THE FAIR WORK LEGISLATION AMENDMENT (SECURE JOBS, BETTER PAY) BILL 2022

OUTLINE

These amendments amend the Fair Work Act 2009 (FW Act) and related legislation in Parts 1, 4, 6, 8, 10, 11, 12, 13, 14, 16, 18, 19, 20, 21, 23, 26 and 27 of Schedule 1 to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (Bill). In addition, this amendment adds Parts 23A and 25A to the Bill.

The amendments:

Fair Work (Registered Organisations) Act 2009

FINANCIAL IMPACT STATEMENT

The financial impact of the National Construction Industry Forum is yet to be determined in consultation with the Department of Finance, and any other associated departments, and once agreed will be included in the relevant appropriation bills. The remaining amendments have nil financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendments to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022

1. A detailed statement of compatibility with human rights was prepared for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill).

2. The amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of amendments

3. The amendments to the Bill that are relevant to human rights are outlined below.

Prohibiting sexual harassment in connection with work

4. Amendment 10 would ensure that State and Territory laws dealing with sexual harassment can operate concurrently with the new provisions prohibiting sexual harassment in connection with work. This includes State and Territory anti-discrimination, workplace relations, occupational health and safety, and criminal laws.

5. Amendments 11-14 would ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by defence members. The Commonwealth would only be liable for contraventions in connection with the person's service as a defence member where the Commonwealth could not prove that it took all reasonable steps to prevent the contravention.

Enterprise agreement pre-approval requirements

6. The amendments would address concerns that the proposed removal of enterprise pre-approval requirements and protections in subsections 180(5) and (6) of the FW Act may negatively impact employees, specifically those who are young, from a culturally and linguistically diverse (CALD) backgrounds or who did not have a bargaining representative for the enterprise agreement.

7. The amendments would retain these safeguards and require the FWC to be satisfied, as part of determining that an enterprise agreement has been genuinely agreed to by employees, that the employer has taken all reasonable steps to ensure that the terms of a proposed enterprise agreement or proposed variation of an agreement, and their effect, are explained to relevant employees in an appropriate manner, taking into account their particular circumstances and needs.

Human rights implications

8. The definition of 'human rights' in the Human Rights (Parliamentary Scrutiny) Act 2011 relates to the core seven United Nations human rights treaties. Amendments to the Bill engages the following rights:

Right to an effective remedy and right to a fair hearing

9. Article 2(3) of the ICCPR and Article 2 of the CEDAW provides the right to an effective remedy for persons who have suffered human rights violations by Australian authorities, as well as persons who have suffered discrimination perpetrated by Australian authorities. The United Nations Human Rights Committee has stated that the right to an effective remedy encompasses an obligation to bring to justice perpetrators of human rights abuses, including discrimination, and also to provide appropriate reparation to the persons who have suffered human rights abuses. Reparation can involve measures including compensation, restitution, rehabilitation, public apologies, guarantees of non-repetition and changes in relevant laws and practices.

10. Article 14(1) of the ICCPR provides that, in the determination of rights and obligations in a suit at law, all persons have a right to a fair and public hearing before a competent, independent and impartial court or tribunal established by law.

Prohibiting sexual harassment in connection with work amendments

11. Amendment 10 would promote the right to an effective remedy by ensuring that State or Territory laws that deal with sexual harassment can operate concurrently with Part 3-5A. This would ensure that an aggrieved person could choose the jurisdiction in which they seek a remedy in relation to workplace sexual harassment. The amendments also provide a way to resolve any inconsistencies in orders made under both a State or Territory law and under the FW Act. Existing provisions in the Bill would prevent multiple penalties being imposed on a party in relation to the same conduct under both the FW Act and State or Territory anti-discrimination law.

12. Amendments 11-14 would promote the right to an effective remedy by enabling an aggrieved person to seek a remedy from the Commonwealth in relation to a contravention of the new prohibition on sexual harassment by a defence member, if that contravention is in connection with the person's service as a defence member. This ensures a remedy is available, even where a remedy could not be obtained from the perpetrator themselves, and is consistent with the vicarious liability provisions relating to other employers and principals in the Bill, and in the Sex Discrimination Act 1984 (SD Act).

13. This amendment would maintain the proportionality in the existing vicarious liability provisions in the Bill by limiting the ability of an aggrieved person to seek a remedy from the Commonwealth if the Commonwealth took all reasonable steps to prevent the sexual harassment from occurring.

Criminal process rights

14. Articles 14 and 15 of the ICCPR protect criminal process rights:

Prohibiting sexual harassment in connection with work amendments

15. The amendments to the proposed prohibition of sexual harassment in connection with work do not directly engage rights in relation to criminal process, but they do provide for civil remedies.

16. Amendments 11-14 would amend the vicarious liability provision in the Bill to enable an aggrieved person to seek a remedy from the Commonwealth in relation to a contravention of the new prohibition on sexual harassment by a defence member, if that contravention was in connection with the person's service as a defence member. This is necessary to ensure that the Commonwealth would be jointly responsible for compensation in these situations, in circumstances where it has not taken all reasonable steps to prevent sexual harassment. The amendments are proportionate as it does not apply if the Commonwealth proves that it took all reasonable steps to prevent the contravention.

17. The amendments would ensure consistency with the SD Act, which provides for the vicarious liability of the Commonwealth for sexual harassment perpetrated by defence members, and includes the reasonable steps exemption.

18. Amendment 10 would preserve the concurrent operation of state and territory laws that deal with sexual harassment. This will not expose respondents to a risk of double punishment. As noted in the provision, generally section 734B prevents multiple applications or complaints being brought under the FW Act and state and territory anti-discrimination laws. In addition, Division 4 of Part 4-1 provides rules governing the interaction between civil and criminal proceedings, and civil double jeopardy.

Right to work and rights in work

19. Article 6 of the ICESCR requires the state parties to the Covenant to recognise the right to work and to take appropriate steps to safeguard this right. The United Nations Committee on Economic, Social and Cultural Rights has started that the right to work in Article 6(1) encompasses the need to provide the worker with just and favourable conditions of work.

20. The United Nations Committee on Economic Social and Cultural Rights in General Comment 18 has also stated that the right to work includes:

the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.

21. There can also be no discrimination in access to and maintenance of employment on the grounds enumerated in Article 2(2) of the ICESCR.

22. Article 7 of the ICESCR requires the state parties to the Covenant to recognise the right of everyone to the enjoyment of just and favourable working conditions.

Enterprise agreement pre-approval requirements

23. A detailed Statement of Compatibility with Human Rights was prepared for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (the Bill). In addition to the human rights identified in the original Statement, the amendments would further support the right to work and to just and favourable conditions of work by retaining an important employee safeguard which requires an employer to explain the terms of a proposed enterprise agreement, and their effect to relevant employees in a manner that is appropriate to their needs and circumstances.

24. The amendments would positively engage and be compatible with the right to just and favourable conditions of work by ensuring that employees who are young, from CALD backgrounds or who did not have a bargaining representative during the bargaining process have an opportunity to understand the proposed terms and conditions that would cover their employment, so that they make an informed decision as to whether to vote for the proposed enterprise agreement.

Right to equality and non-discrimination

25. Both the ICCPR (Article 2(1)) and the ICESCR (Article 2(2)) requires state parties to the Covenants to guarantee that the rights set out in these covenants are exercised without discrimination of any kind, including on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

26. Article 26 of the ICCPR further provides that state parties must ensure that all persons are equal before the law and are entitled, without any discrimination, to the equal protection of the law.

Enterprise agreement pre-approval requirements

27. The amendments would positively engage and be compatible with the right to equality and non-discrimination by ensuring that employees who have a particular attribute (for example, young employees, or employees from a CALD background) are provided tailored and appropriate explanations about a proposed enterprise agreement that may cover their employment, so that they may cast an informed vote either for or against the proposed agreement. The amendments would ensure that these employees are provided an equal opportunity to understand a proposed enterprise agreement, in the same way as employees who may not have those particular attributes.

Conclusion

28. The Bill is compatible with human rights because it promotes human rights, including civil, political, social, economic and labour rights. To the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.

Minister for Employment and Workplace Rela tions, the Hon Tony Burke MP

NOTES ON AMENDMENTS

In these notes on amendments, the following abbreviations are used:

Expert panels

Amendment 1: Clause 2, page 3 (table item 11)

1. This amendment would change the commencement of Part 6 from the day after Royal Assent to a day to be fixed by Proclamation or, if the provisions do not commence within the period of three months beginning on the day of Royal Assent, they commence on the day after the end of that period.

Fixed term contracts

Amendment 2: Clause 2, page 3 (table item 16)

2. This amendment would provide that the fixed term contract provisions in Part 10 of Schedule 1 commence on the earlier of:

Amendment 15: Schedule 1, item 441, page 120 (lines 27 to 33)

3. This amendment would insert new proposed paragraph 333E(5)(d), which would prohibit the use of a third or more fixed term contract where an employee has previously been engaged on two consecutive contracts for the same or similar work. For the prohibition to apply, there must be substantial continuity between all three or more of the contracts. This amendment clarifies that the prohibition applies when the employment relationship exceeds two contracts, even if it does not also exceed two years in duration.

Amendment 16: Schedule 1, item 441, page 123 (after line 11), after paragraph 33H(1)(b)

4. This amendment would insert a further anti-avoidance provision at new paragraph 333H(1)(ba). This provision would prohibit an employer from ending one employee's employment in accordance with the terms of their fixed term contract, and engaging another employee to do the same or similar work. In order for this provision to apply to an employer's decision to terminate an employee's employment, the employer must have made the decision so as to avoid the operation of section 333E.

Amendment 130: Schedule 1, item 660, page 223 (line 17)

Amendment 131: Schedule 1, item 660, page 223 (line 19)

Amendment 132: Schedule 1, item 660, page 223 (line 24)

5. These amendments are consequential to the amendment to the commencement provision for Part 10 of Schedule 1 set out in amendment 2.

Objects of the Fair Work Act

Amendment 9A: Schedule 1, item 346, page 80 (lines 4 and 5)

Amendment 9B: Schedule 1, item 347, page 80 (line 10)

Amendment 9C: Schedule 1, item 349, page 80 (line 19)

6. These amendments would replace references to the term 'gender equity' with the words 'gender equality' in the objects of the Act, the modern awards objective, and the minimum wages objective.

7. The intention of the references to 'gender equality' in each of these provisions is to adopt language more consistent with the Convention on the Elimination of All Forms of Discrimination against Women and to reflect the policy objective of both formal and substantive gender equality.

Agreement of bargaining representatives

Amendment 3: Clause 2, page 4 (cell at table item 20, column 2)

8. Due to the interaction between Part 14 (Enterprise agreement approval) and Part 21 (Single interest employer authorisations) of Schedule 1 to the Bill, this amendment would have the effect of aligning commencement of those Parts. Part 21 commences at the same time as Part 20.

Amendment 30: Schedule 1, page 157 (before line 8), before item 507

9. This amendment would insert a new section 180A, which applies to a proposed multi-enterprise agreement (i.e. a proposed single interest agreement, supported bargaining agreement or cooperative workplace agreement).

10. New section 180A provides that before requesting employees to approve such an agreement by voting for it, the employer must obtain written agreement to the making of the request from each bargaining representative for the agreement that is an employee organisation.

11. The requirement would not apply to a proposed single-enterprise agreement.

12. Currently, whether an employer's failure to notify or obtain the agreement of bargaining representatives prior to putting an enterprise agreement to a vote amounts to a breach of the good faith bargaining requirements in section 228 of the FW Act depends on the particular circumstances (see, e.g., CFMMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510).

Amendment 31: Schedule 1, item 509, page 158 (after line 15), after subsection 188(2)

13. This amendment would insert new subsection 188(2A), which provides that the FWC cannot be satisfied that a multi-enterprise agreement has been genuinely agreed to by the relevant employees unless it is satisfied that the employer complied with new section 180A, i.e., unless the employer obtained the written agreement of bargaining representatives that are employee organisations to put the agreement to a vote.

14. Satisfaction that a non-greenfields enterprise agreement has been genuinely agreed to is a condition of the FWC approving the agreement (see paragraph 186(2)(a)).

Amendment 33: Schedule 1, item 509, page 158 (line 36), after "subsection"

Amendment 36: Schedule 1, item 509, page 159 (before line 6), before paragraph 188(5)(b)

15. Amendments 33 and 36 would amend new subsection 188(5) to provide that in determining whether an enterprise agreement has been genuinely agreed to, the FWC's discretion to disregard minor procedural or technical errors (if employees were not likely to have been disadvantaged by the errors) applies to the requirement in new section 180A.

Amendment 37: Schedule 1, page 160 (after line 14), after item 511

Amendment 40: Schedule 1, item 516, page 160 (lines 31 to 32)

16. Amendment 37 inserts new section 207A, which would introduce a similar requirement for employers to obtain written agreement from relevant employee organisations prior to requesting employees to approve a proposed variation of a multi-enterprise agreement under Subdivision A of Division 7 of the FW Act.

17. New section 207A provides that before an employer requests (under subsection 208(1)) that employees approve a variation of a multi-enterprise agreement by voting for it, the employer must obtain written agreement to the making of the request from each employee organisation covered by the enterprise agreement.

18. Amendment 40 is a consequential amendment and ensures that compliance with new section 207A is a condition of the FWC being satisfied that the variation has been genuinely agreed to by the relevant employees (subject to the FWC's discretion to disregard minor procedural or technical errors if employees were not likely to have been disadvantaged by the errors).

Amendment 70: Schedule 1, item 597, page 191 (line 34)

Amendment 90: Schedule 1, item 629, page 206 (line 7)

Amendment 125: Schedule 1, item 649, page 224 (line 17)

19. These amendments would have the effect that the new requirement to obtain written agreement from relevant employee organisations to put a variation of a multi-enterprise agreement to a vote of employees does not apply to the following variations:

20. Applications to make the relevant variations must be made jointly by the employer and their affected employees.

Better off overall test

Amendment 4—Clause 2, page 4 (table item 22)

21. This amendment would provide that Part 16 of Schedule 1 to the Bill commences on a day to be fixed by Proclamation or at the latest, the day after a period of 6 months beginning on the day of Royal Assent.

Amendment 42: Schedule 1, item 525, page 163 (line 14)

Amendment 47: Schedule 1, item 532, page 166 (line 20)

Amendment 51: Schedule 1, item 534, page 168 (line 29)

22. These amendments would provide that where the FWC makes an amendment to an enterprise agreement (or an amendment to a variation of an enterprise agreement under Subdivision A of Division 7 of the FW Act) to address a concern about the BOOT, the amendment must be "necessary" to address the concern.

Amendment 43: Schedule 1, item 525, page 163 (line 16)

23. This amendment would provide that if the FWC intends to specify an amendment to an enterprise agreement that is necessary to address a concern about the BOOT, then it "must", rather than "may", seek the views of the relevant employer or employers, employees and bargaining representatives for the agreement.

Amendment 44: Schedule 1, item 528, page 164 (line 17)

Amendment 45: Schedule 1, item 528, page 164 (after line 25)

24. Amendments 44 and 45 are technical amendments which would clarify that the BOOT will only apply to "prospective award covered employees" if the enterprise agreement is a greenfields agreement.

Amendment 46: Schedule 1, item 531, page 166 (after line 6), after paragraph 211(4A)(a)

25. This is a technical amendment, which would reflect that when the BOOT is applied to a variation of an enterprise agreement under Subdivision A of Division 7 of the FW Act, there are no longer any bargaining representatives for the agreement. The effect of this amendment is that the FWC must give consideration to any views relating to whether the agreement passes the BOOT that have been expressed by the relevant employer or employers, employees, and any employee organisations covered by the agreement. The FWC must also give primary consideration to any common view that has been expressed by the relevant employer or employers and any employee organisations that are covered by the agreement.

Amendment 48: Schedule 1, item 532, page 166 (line 22)

26. This amendment would provide that if the FWC intends to specify an amendment to a variation of an enterprise agreement that is necessary to address a concern about the BOOT, then the FWC "must", rather than "may", seek the views of the relevant employer or employers and employee organisations covered by the agreement.

Amendment 49: Schedule 1, item 534, page 167 (line 17) to page 168 (line 6)

27. This amendment to the Bill would substitute a new section 227A, concerning applications for the FWC to reconsider whether an agreement passes the BOOT.

28. To address the possible scenario of an enterprise agreement passing the BOOT in circumstances where it provided globally more favourable terms and conditions for 'original employees' and less favourable terms and conditions for 'new employees' (that would not pass the BOOT if prospective employees were considered as a cohort at this time) who are doing the same work, new subsection 227A(3) would provide an additional basis for accessing the BOOT reconsideration process. BOOT reconsideration would also be available to 'new employees' in circumstances where the terms of the enterprise agreement applying to them are not the same as those applying to the 'original employees' if they engage in the same patterns or kinds of work, or types of employment.

29. The effect of new subsection 227A(4) is that while BOOT reconsideration is based on an earlier 'test time' (either the time of the original application for approval of the enterprise agreement or the time of a subsequent application to vary the agreement), the relevant employees must still be 'award covered employees' for the agreement at the time of the application for reconsideration.

30. While the FWC must give consideration to the views of the parties, and primary consideration to a common view in certain circumstances, the FWC remains required to undertake its own independent assessment in applying the BOOT pursuant to section 193A.

Amendment 50: Schedule 1, item 534, page 168 (lines 12 to 22), omit subsection 227B(2)

31. This amendment would substitute new subsections 227B(2) and 227B(2A), concerning FWC reconsideration of whether an enterprise agreement passes the BOOT.

32. New paragraph 227B(2)(a) is intended to remove any doubt that employees who are 'award covered employees' for the agreement at the time of the application for reconsideration should also be considered award covered employees, under paragraphs 193(4)(a) and (b), for the purpose of the reconsideration.

33. The effect of paragraph 227B(2)(b) and subsection 227B(2A) is that the 'test time' for a reconsideration of whether an enterprise agreement passes the BOOT is the time the original application for approval of the agreement was made, or—if the FWC has approved one or more variations under section 211—the time the application for approval of the most recent of those variations was made.

34. Paragraph 227B(2)(c) would clarify that BOOT reconsideration is not available in respect of a greenfields agreement.

35. Paragraphs 227B(2)(d)-(f) are technical amendments to reflect that at the stage of a reconsideration, there are no longer bargaining representatives for the agreement.

Amendment 52: Schedule 1, item 534, page 169 (line 26)

36. This amendment is a technical correction.

Amendment 133: Schedule 1, item 660, page 235 (line 6)

37. This amendment is consequential on amendment 4 (commencement of Part 16 of the Bill).

Industrial action

Amendment 5: Clause 2, page 4 (table items 25 and 26)

38. This amendment would amend Clause 2 of the Bill as a consequence of Amendment 59 omitting Division 1 from the Bill.

Amendment 59: Schedule 1, Part 19, Division 1, page 179 (line 2) to page 180 (line 5)

39. This amendment would omit Division 1 from Part 19 of the Bill. Division 1 provided that protected industrial action could only occur within a three-month period starting from the date the results were declared for a successful PAB. With the omission of Division 1, protected industrial action by employees will be authorised by a PAB if the action commences within 30 days from the declaration of the results of the ballot, noting that the FWC may extend the 30-day period by up to 30 days in some circumstances.

Amendment 60: Schedule 1, item 576, page 183 (line 29) to page 184 (line 4)

40. This amendment would amend Item 576 and insert two new Items into the Bill to provide that the Electoral Commissioner is a person who may apply to the courts for orders in relation to contraventions of civil penalty provisions, rather than referring to the Australian Electoral Commission. Table items 18, 19 and 20 of the table in subsection 539(2) relate to the conduct of PABs.

Amendment 61: Schedule 1, items 577 and 578, page 184 (lines 7 to 16)

41. This amendment would make three changes to the Bill. The first change is to amend the heading of Division 3 as a consequence of the further amendments made by this amendment. The second change is a technical change to omit Items 577 and 578 from the Bill. These Items are not necessary as amendments to achieve the same outcome are at Items 625 and 626 in Part 20. The Items in Part 20 would preclude protected industrial action being taken in relation to a cooperative workplace agreement. Part 20 commences at the same time as Part 23, which defines 'a cooperative workplace agreement' at Item 642. Parts 20 and 23 need to commence before Part 19 as 'cooperative workplace agreement' would need to be defined for Part 3-3 of the FW Act before Part 19 commenced.

42. New section 437A would require the FWC to issue one PAB order in relation to the employees for each employer when dealing with bargaining for a multi-enterprise agreement. This means that any protected industrial action arising out of the ballot would be conducted on an employer-by-employer basis. The amendments would not apply to related employers, as they continue to make single-enterprise agreements (see item 82, which inserts new item 627B in the Bill).

Amendment 62: Schedule 1, item 579, page 184 (lines 24 to 26)

43. This amendment is a consequential amendment following the classification of both 'single interest employer agreements' and 'supported bargaining agreements' by other amendments as 'multi-enterprise agreements'. Item 579 would then provide that if the proposed enterprise agreement is a multi-enterprise agreement, employees are required to provide a minimum of 120 hours' notice before industrial action commences. See amendment 63 for multi-enterprise agreements that are greenfields agreements or co-operative workplace agreements.

Amendment 63: Schedule 1, page 184 (after line 26), after item 579

44. While cooperative workplace agreements are multi-enterprise agreements, to avoid any confusion, a legislative note is inserted to point to new section 413(2) as amended by Item 625 of the Bill which provides that to be protected industrial action, the industrial action must not be related to a proposed enterprise agreement that is a greenfields agreement or a co-operative workplace agreement.

Amendment 64: Schedule 1, item 581, page 185 (lines 9 to 12)

45. This amendment would clarify the operation of Item 581 of the Bill. The amendment would leave no doubt that if an employee bargaining representative contravened an order to attend a conciliation conference held during the PAB period, protected industrial action would not be available to the employees under that PAB.

Amendment 65: Schedule 1, items 582 and 583, page 185 (lines 13 to 24)

46. Similarly to amendment 64, this amendment would clarify the operation of Item 583 of the Bill. The amendment would leave no doubt that if an employer, or any employer bargaining representative, contravened an order to attend a conciliation conference during the PAB period, protected industrial action would not be available to the employer under that PAB.

Amendment 134: Schedule 1, item 660, clause 72, page 236 (lines 9 to 13)

47. This amendment is consequential to amendment 59 which would omit Division 1 of Part 19 from the Bill. There is no longer a need for this application provision.

Amendment 135: Schedule 1, item 660, page 236, line 18

48. This is a technical amendment relating to the structure of the Bill to refer to 'subclause' rather than 'subsection'.

Amendment 136: Schedule 1, item 660, clause 72, page 236 (lines 23 to 27)

49. This amendment is an application provision consequential to Amendment 60 which would enable the Electoral Commissioner to seek orders for contraventions of civil penalty provisions relating to the conduct of a PAB. This amendment provides that the Electoral Commissioner may seek orders from the courts from the commencement of Division 2 of Part 19.

Amendment 137: Schedule 1, item 660, clause 72, page 236, line 28

50. This amendment is a technical correction to an application provision to provide that from commencement all the requirements of Division 3 of Part 19 of Schedule 1 to the Bill apply. That is, to be protected industrial action, industrial action must not relate to a proposed cooperative workplace agreement or a greenfields agreement. In addition, an application for a PAB cannot be made if the agreement is a cooperative workplace agreement.

Excluded work

Amendment 6: Clause 2, page 5 (after table item 30)

51. Amendment 6 would insert commencement information for new Part 23A, which would be inserted by amendment 128.

Amendment 68: Schedule 1, item 597, page 191 (lines 1 to 3)

Amendment 73: Schedule 1, item 597, page 194 (lines 25 to 27)

Amendment 75: Schedule 1, item 610, page 196 (lines 20 to 25)

Amendment 76: Schedule 1, item 611, page 197 (lines 23 to 26)

Amendment 77: Schedule 1, item 611, page 198 (lines 9 and 10)

Amendment 78: Schedule 1, item 611, page 198 (line 23) to page 199 (line 2)

Amendment 79: Schedule 1, item 614, page 199 (lines 7 to 20)

Amendment 81: Schedule 1, item 617, page 199 (line 25) to page 200 (line 3)

52. Item 644 of the Bill would insert new section 178C which will be replaced by the amendments. New section 178C would permit the FWC, in certain circumstances, to make an order that has the effect of excluding a person who has a relevant record of repeatedly not complying with the FW Act from being a bargaining representative for a proposed enterprise agreement.

53. Amendment 117 would omit items 643 to 646 in favour of a scheme precluding multi-employer agreements from covering employees in relation to the performance of certain types of excluded work. Consequential to Amendment 117, the following amendments would facilitate the new scheme relating to excluded work and reflect the intention that where work is excluded it will not be possible to:

54. New subsection 216AB(2), inserted by item 597, would prohibit the FWC from approving a variation of a supported bargaining agreement to add an employer and their employees if the employer is an excluded person under new section 178C. Amendment 68 would omit and substitute a new subsection 216AB(2) providing that the FWC must not approve the variation if, as a result of the variation, the agreement would cover employees in relation to excluded work.

55. New paragraph 216BA(3)(a), inserted by item 597, would provide that the FWC must not make a variation of a supported bargaining agreement to add an employer and their employee without consent if the employee organisation that applied for the variation under section 216B is excluded for the purposes of the agreement by an order under section 178C. Amendment 73 would omit and substitute a new paragraph 216BA(3)(a) providing that the FWC must not make the variation if, as a result of the variation, the agreement would cover employees in relation to excluded work.

56. New subsection 242(1A), inserted by item 610, would prevent an employee organisation applying for a supported bargaining authorisation if it is excluded for the purposes of the agreement by an order made under new section 178C. Amendment 75 would omit item 610. This amendment is consequential on the shift from excluding persons to exclusion based on the type of work performed by employees.

57. Item 611 would insert new sections 243 and 243A. Section 243 would provide the criteria which the FWC must consider in determining whether to make a supported bargaining authorisation. One such criterion is that the FWC is satisfied that at least some of the employees who will be covered by the agreement are represented by an employee organisation, disregarding any employee organisation excluded for the purposes of the agreement by an order under section 178C. Amendment 76 would omit the requirement that the FWC must disregard any employee organisation excluded for the purposes of the agreement by an order under section 178C.

58. Amendment 77 would omit the heading to new section 243A and substitute a new heading, 'Restrictions on making supported bargaining authorisations'. This amendment is necessary as the new regime would exclude agreements on that basis that they cover employees performing certain types of excluded work, rather than excluding certain individuals from being a bargaining representative by an order under section 178C.

59. New subsections 243A(4) and 243A(5) would provide that the FWC must not make a supported bargaining authorisation specifying an employer who is excluded under new section 178C and must vary an authorisation to remove any such employer. Amendment 78 would omit both subsections and substitute a new subsection 243A(4) providing that the FWC must not make a supported bargaining authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to excluded work.

60. New subsection 244(4), substituted by item 614, would provide that a person excluded by an order under section 178C cannot apply for a variation of a supported bargaining authorisation. Amendment 79 would omit and substitute a new item 614 that would provide that if an application is made for a variation of a supported bargaining authorisation to add an employer, the FWC must vary the authorisation to add the employer if satisfied it is in the public interest, taking into account specified matters, but must not vary the authorisation if, as a result of the variation, the proposed multi-enterprise agreement would cover employees in relation to excluded work.

61. New section 245A, inserted by item 617, would require the FWC to revoke a supported bargaining authorisation if the effect of one or more orders under section 178C is that none of the employees covered by the proposed supported bargaining agreement are represented by an employee organisation. Amendment 81 would omit item 617 and is consequential on the shift from excluding persons to exclusion based on the type of work performed by employees.

Amendment 87: Schedule 1, item 629, page 205 (lines 16 to 22)

Amendment 100: Schedule 1, page 209 (after line 24), after item 635

Amendment 102: Schedule 1, item 637, page 210 (lines 17 to 19)

Amendment 104: Schedule 1, page 212 (before line 18), before item 640

Amendment 105: Schedule 1, item 640, page 212 (line 18) to page 213 (line 19)

62. New subsection 216DC(4), inserted by item 629, would prevent the FWC from approving a variation of a single interest employer agreement to extend coverage to a new employer and its affected employees if the employer or employee organisation that made the application is excluded for the purposes of the agreement by an order under new section 178C. Amendment 87 would omit subsection 216DC(4) and substitute new subsections 216DC(4) and (5). These new subsections would provide that the FWC must not approve the variation if the agreement is a greenfields agreement that covers employees in relation to general building and construction work or as a result of the variation, the agreement would cover employees in relation to general building and construction work. It is intended that the limitation preventing the FWC from approving the variation if, as a result of the variation, the agreement would cover employees in relation to general building and construction work would apply in relation to greenfields agreements.

63. Amendment 100 would insert new section 249A providing that the FWC must not make a single interest employer authorisation in relation to a proposed enterprise agreement if the agreement would cover employees in relation to excluded work.

64. A note under new subsection 251(1) would indicate that a person is not a bargaining representative for the purposes of a variation of a single interest employer authorisation if they are excluded for the purposes of that agreement by an order under new section 178C. Amendment EW12 would omit the note and is a consequential amendment.

65. Amendment 104 would insert a new item 639A, adding a new section 251A to provide that the FWC must not vary a single interest employer authorisation if, as a result of the variation, the proposed enterprise agreement to which the authorisation relates would cover employees in relation to excluded work.

66. Item 640 would insert new section 252A into Division 10 of Part 2-4 of the FW Act in order to set out the consequences for a single interest employer authorisation of an order by the FWC excluding a person for the purposes of a proposed enterprise agreement under new section 178C. Amendment 105 would omit item 640 and is a consequential amendment.

Amendment 118: Schedule 1, items 643 to 646, page 218 (line 9) to page 221 (line 13)

67. Item 643 would introduce an exception to section 176 such that a person who is excluded by an order under new section 178C cannot be a bargaining representative for a proposed enterprise agreement that is not a greenfields agreement.

68. Item 644 would insert a new section 178C into the FW Act to enable the FWC to make orders which effectively ban a person from coverage by an enterprise agreement if the FWC is satisfied of specified matters.

69. Item 645 would introduce a new subsection 183(3) which would preclude a person who is subject to an exclusion order under new section 178C from being covered by the agreement.

70. Item 646 would insert new section 183A providing that, in circumstances where an enterprise agreement is made and expressed to cover a person that is subject to an exclusion order under new section 178C, the enterprise agreement must be varied so that it is not expressed to cover the excluded person before an application for approval under section 185 can be made.

71. Amendment 118 would omit items 643 to 646. The provisions specifying excluded work are primarily specified in amendment 128.

Amendment 120: Schedule 1, item 647, page 221 (lines 22 to 24)

72. Section 186 of the FW Act sets out the requirements of which the FWC must be satisfied before it can approve an enterprise agreement. Item 647 would introduce a new subsection 186(2A) to require that the FWC would need to be satisfied that at least some of the employees to be covered by a cooperative workplace agreement that is not a greenfields agreement were represented by an employee organisation in relation to bargaining for the agreement. This would not include any employee organisations subject to an exclusion order under new section 178C. Amendment 120 is a consequential amendment and would omit the second sentence of subsection 186(2A) requiring that the FWC disregard any employee organisations subject to an exclusion order under new section 178C.

Amendment 121: Schedule 1, item 648, page 221 (lines 25 to 31)

73. Item 648 would repeal and substitute subsection 187(3) to expand the operation of subsection 187(3) to require that the FWC is satisfied that the notice requirements pursuant to new section 183A and section 184 have been met before it can approve the agreement. New subsection 183A, which would be inserted by item 646, requires a bargaining representative vary an agreement if it is expressed to cover a person excluded by an order under new section 178C. Amendment 121 is a consequential amendment and would omit item 648.

Amendment 123: Schedule 1, item 649, page 223 (lines 31 to 33)

74. Item 649 would insert a new Subdivision AC into Division 7 of Part 2-4 of the FW Act to allow an employer and their employees who are not covered by a cooperative workplace agreement to jointly apply for a variation of that cooperative workplace agreement. New subsection 216CB(2) would provide that the FWC must not approve the variation if the employer is excluded for the purposes of the agreement by an order under section 178C. Amendment 123 would omit and substitute a new subsections 216CB(2), providing that the FWC must not approve the variation if the agreement is a greenfields agreement that covers employees in relation to excluded work or, as a result of the variation, the agreement would cover employees in relation to excluded work.

75. The practical effect of this amendment would be that the FWC cannot approve a variation of a cooperative workplace agreement to add an employer and their employees if the variation would cause the agreement to cover employees in relation to excluded work. This is the case even where the agreement is a greenfields agreement. While the intention is to allow the FWC to approve multi-enterprise agreements that are greenfields agreements that will cover employees in relation to the excluded work, it is not intended to allow those agreements to be varied to add employers and employees.

Amendment 128: Schedule 1, page 225 (after line 30), after Part 23

76. Amendment 128 would insert new Part 23A dealing with excluded work.

77. Item 651A would amend section 12 by inserting signpost definitions for "applicable time", defined by reference to subsection 23B(2), and "general building and construction work", defined by reference to subsection 23B(1). In this document, the term 'excluded work' is used interchangeably with the defined term "general building and construction work" to aid comprehension.

78. Item 651B would insert a new section 23B, setting out the meaning of "general building and construction work" and "applicable time".

79. New subsection 23B(1) would define "general building and construction work" as work done onsite by an employee of an employer that is in the industry of general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General Onsite Award 2020 as in force at the applicable time. Subparagraph 23(B)(1)(b) would provide for a number of exclusions by reference to modern awards in force at the applicable time.

80. New subsection 23B(2) would define "applicable time" as the start of the day before the section commences.

81. While existing provisions of the FW Act refer to the "building and construction industry", for example subsection 123(3) and paragraphs 534(1)(e) and 789(1)(e), the expression "general building and construction work" used in new Part 23A would not be intended to have the same meaning as these existing provisions.

82. The Department of Employment and Workplace Relations would publish or arrange for a relevant portfolio agency to publish the relevant clauses of the Building and Construction General Onsite Award 2020 as at the applicable time to assist relevant persons to understand and comply with relevant provisions. As at 5 November 2022, it was also possible to search the FWC's website for historical versions of awards.

83. Item 651C is a technical amendment to the note below subsection 172(3) and would omit the reference to "Note" and substitute it with "Note 1".

84. Item 651D would insert a new note 2 below subsection 172(3) providing that the FWC must not approve a multi-enterprise agreement that is not a greenfields agreement if the agreement would cover employees in relation to general building and construction work and refers to subsection 186(2B).

85. Item 651E would insert a new subsection 186(2B) providing that, when considering approval of an enterprise agreement, if the agreement is a multi-enterprise agreement that is not a greenfields agreement, the FWC must be satisfied that the agreement does not cover employees in relation to general building and construction work.

86. Item 651F would insert a new paragraph 211(2)(aa) providing that in an application for approval of a variation of an enterprise agreement, the FWC must take into account subsection 211(3A) if the agreement is a multi-enterprise agreement.

87. New subsection 211(3A) is inserted by item 651G and would provide that subsection 186(2B) has effect as if the requirement in that subsection that the agreement must not cover employees in relation to general building and construction work were a requirement that the agreement as proposed to be varied must not cover employees in relation to such work.

Amendment 143: Schedule 1, item 660, page 239 (lines 1 to 7)

88. Amendment 143 would omit new clause 79. New clause 79 refers to section 252A, which would be inserted by item 640. This amendment would be necessary because item 640 would be omitted by amendment 105.

Amendment 144: Schedule 1, item 660, page 239 (lines 10 to 15)

89. Amendment 144 would omit new clause 80. New clause 80 would allow the FWC to consider, in the 18-month period before an application for an exclusion order under section 178C, any court findings that the relevant person has contravened a civil remedy provision of the FW Act or committed an offence against the FW Act, whether a finding was made before, or after, the commencement of the section. This amendment is necessary because item 644, which would insert new section 178C, would be omitted by amendment 118.

Amendment 146: Schedule 1, item 660, page 239 (after line 26), after Division 17

90. Amendment 146 would insert a new Division 17A providing that new subsection 186(2B) applies if the agreement or variation is made after the commencement of Part 23A.

National Construction Industry Forum

Amendment 7: Clause 2, page 5 (after table item 32)

91. This amendment would provide that new Part 25A—Establishment of the National Construction Industry Forum would commence on 1 July 2023.

Amendment 129: Schedule 1, page 228 (after line 26), after Part 25

92. This amendment would insert new 'Part 25A—Establishment of the National Construction Industry Forum' into the Bill. New Part 25A would amend the FW Act by inserting a new 'Part 6-4D—The National Construction Industry Forum' into Chapter 6 and making consequential amendments to section 12 (definitions).

93. Item 659A of new Part 25A would amend section 12 of the FW Act to insert definitions of 'Industry Minister' and 'Infrastructure Minister'. These amendments are consequential to the amendments made by item 659B.

94. Item 659B would insert a new Part 6-4D into the FW Act to establish the Forum as a statutory advisory body chaired by the Minister.

95. The function of the Forum, contained in new section 789GZD, would give the Forum a broad remit to provide advice to the Government on matters relating to work in the building and construction industry that are either raised by Government or agreed by the members. New subsection 789GZD(2) would provide a non-exhaustive list of matters that the Forum may provide advice on.

96. The membership of the Forum would be governed by new section 789GZE, which would provide that the Minister, the Industry Minister (Minister administering the Australian Jobs Act 2013) and the Infrastructure Minister (Minister administering the Infrastructure Australia Act 2008) are members of the Forum, along with the members appointed by the Minister.

97. New subsection 789GZE(2) would require the Minister to appoint one or more members who have experience representing employees in the building and construction industry, and an equal number of members who have experience representing employers in the building and construction industry, including at least one member who has experience representing contractors in the building and construction industry. This is to ensure equal representation by employee and employer/contractor representatives on the Forum.

98. New subsection 789GZE(3) would give the Minister a broad discretion to also appoint other persons as members of the Forum, which might include relevant statutory appointees, representatives of community groups (e.g. disability or women's representative groups) or other persons with experience relevant to the functions of the Forum.

99. Appointments to the Forum would be on a part-time basis and for an initial period of up to three years (section 789GZF). A note explains that a member would be eligible for reappointment at the end of their term.

100. None of the members of the Forum would be entitled to receive any additional payments or allowances in respect of their membership of the forum, with the exception that a member who is not a Minister or a member of the Parliament would be entitled to receive travel allowance to attend meetings at the rate prescribed by the regulations (new section 789GZM). New subsection 789GZM(3) would make it clear that section 789GZM does not affect any entitlements of a Minister or a member of the Parliament under the Parliamentary Business Resources Act 2017.

101. Members would be required to disclose material personal interests related to matters being considered by the Forum and must not participate in any part of a meeting during which the matter is dealt with (new section 789GZP).

102. Appointed members could resign by giving the Chair a written resignation (new section 789GZN) and could have their appointment terminated by the Minister on the grounds of misbehaviour, incapacity, bankruptcy etc., loss of position or qualification that formed the basis of the reason for their appointment, failure to comply with confidentiality or interest disclosure obligations or absence from three consecutive meetings without the approval of the Chair (new section 789GZQ).

103. New section 789GZG would provide that the Minister is the Chair of the Forum. However, if the Minister is unable to preside at a meeting, or considers it appropriate to do so for any other reason, the Minister may nominate another Minister to preside at that meeting and the relevant Minister would be permitted to do so.

104. The Chair would be required by new section 789GZH to convene at least two meetings of the Forum per calendar year, once in the first six months, and once in the second six months, with the timing of meetings to be determined by the Chair in consultation with the members. New subsection 789GZH(4) would make it clear that the procedure to be followed at Forum meetings is to be determined by the Chair in consultation with the members.

105. New section 789GZK would provide that if any member of the Forum is unable to attend a meeting, they would be permitted to nominate a person to attend in their place and, if the Chair agrees, that person may attend the meeting as a substitute member. The substitute member would have all the rights and responsibilities of a member at, and in respect of, the meeting, including disclosure of interest and confidentiality obligations.

106. After consulting with the other members of the Forum, the Chair would be permitted to invite a person, body or organisation that is not a member to participate in a particular meeting and could terminate that invitation at any time. An invited participant would be entitled to receive travel allowance as if the person was a member. However, the participation of a person in a meeting does not make that person a member (new section 789GZL).

107. All members, substitute members and invited participants would be subject to an obligation to keep views expressed during meetings confidential, but this would not prevent members from reporting to the persons, bodies or organisations they represent or from making announcements the members agree are in the public interest (new section 789GZJ).

Functions under the RO Act

Amendment 8: Schedule 1, item 5, page 7 (line 12)

Amendment 9: Schedule 1, item 6, page 8 (lines 15 to 24)

108. These amendments would amend item 6 of the Bill to omit proposed new section 329B of the FW Act, which would have empowered the Minister to give directions of a general nature to the General Manager in relation to the performance of their functions under the RO Act.

109. Removing this power would acknowledge the independence of the General Manager in their capacity as the regulator of registered organisations.

110. The amendments would also consequentially amend item 5 of the Bill to remove the reference to Ministerial directions to the General Manager that would have been inserted into the simplified outline to Part 1 of Chapter 11 of the RO Act.

Prohibiting sexual harassment in connec tion with work

Amendment 10: Schedule 1, item 393, page 96 (after line 25), after section 527C

111. This amendment would insert clause 527CA into new Part 3-5A of the FW Act. Part 3-5A would be inserted by Part 8 of Schedule 1 to the Bill and would prohibit sexual harassment in connection with work.

112. Clause 527CA is intended to preserve the concurrent operation of State and Territory laws dealing with sexual harassment and addresses potential interaction issues that may arise because of section 109 of the Constitution.

113. Section 109 of the Constitution renders inoperative a State law to the extent that it is inconsistent with a Commonwealth law. If the Commonwealth law is interpreted as operating to the exclusion of a State law, the State law will be interpreted as inconsistent with the Commonwealth law. While section 109 of the Constitution does not apply to Territory laws, similar principles apply in relation to the inconsistency of Territory laws with Commonwealth laws.

114. Clause 527CA is intended to be used in interpreting the operation and effect of new Part 3-5A. It would indicate Parliament's intention that State and Territory laws dealing with sexual harassment can operate concurrently with Part 3-5A. This includes State and Territory anti-discrimination laws, workplace relations laws, occupational health and safety laws, and criminal laws.

115. Subclause 527CA(1) would provide that Part 3-5A does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with the Part.

116. Subclauses 527CA(2) and (3) would provide examples of State and Territory laws that could operate concurrently with Part 3-5A, without limiting the general rule in subclause 527CA(1).

117. Subclause 527CA(2) would clarify that Part 3-5A would not exclude or limit the concurrent operation of a State or Territory law that makes an act or omission an offence, or subject to a civil penalty, where that act or omission (or any similar act or omission) would also constitute a contravention of Part 3-5A. For example, this would enable the concurrent operation of prohibitions on workplace sexual harassment in State or Territory anti-discrimination law or State or Territory laws criminalising sexual assault.

118. Subclause 527CA(3) would clarify that Part 3-5A does not exclude or limit the concurrent operation of a State or Territory law that allows an application to be made to a person, court or body for an order, or any other direction (however described), to prevent sexual harassment, or to deal with a dispute about sexual harassment. For example, this would preserve the concurrent operation of State or Territory laws that enable a tribunal to issue a stop sexual harassment order.

119. It would be irrelevant whether sexual harassment has a different meaning for the purposes of the State or Territory law to the meaning used in the FW Act, or whether the State or Territory law describes the conduct as sexual harassment. For example, State or Territory laws that deal with sexual harassment would be preserved, even if they use a different definition of sexual harassment to the definition that applies for the purposes of the FW Act. State and Territory laws would also be preserved even if they do not specifically apply to sexual harassment. For example, if sexual harassment also constitutes bullying, then a State or Territory law allowing orders to be made to prevent bullying could operate despite Part 3-5A.

120. A new legislative note would alert the reader that new section 734B, which would be inserted by Part 8 of Schedule 1 to the Bill, would generally prevent multiple applications or complaints under both the FW Act and State and Territory anti-discrimination laws in relation to the same conduct.

121. However, multiple orders covering the same conduct could be made at both the State or Territory and Commonwealth levels, for example, to stop workplace sexual harassment from continuing. In that circumstance, another legislative note would alert the reader that, due to the operation of section 109 of the Constitution, the order made under the FW Act would prevail to the extent of any inconsistency.

122. Subclause 527CA(4) would clarify that section 26 of the FW Act has effect subject to clause 527CA. This would indicate Parliament's intention that section 26 does not exclude State or Territory laws to the extent they are preserved by clause 527CA.

Amendment 11: Schedule 1, item 393, page 97 (after line 26), before subsection 527E(1)

Amendment 12: Schedule 1, item 393, page 98 (after line 3), after subsection 527E(2)

Amendment 13: Schedule 1, item 393, page 98 (after line 3), before subsection 527E(3)

Amendment 14: Schedule 1, item 393, page 98 (line 4)

123. These amendments would ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by defence members in connection with the person's service as a defence member.

124. The amendments are necessary because the existing vicarious liability provision in the Bill may not apply in relation to contraventions by defence members due to the special nature of defence service, which is not employment and also may not be an agency relationship.

125. Consistent with the operation of the vicarious liability provision as it applies to employers and other principals, the Commonwealth would not be vicariously liable for actions of defence members if the Commonwealth proved that it took all reasonable steps to prevent the contravention.

126. The amendments ensure consistency with the SD Act, which provides for the vicarious liability of the Commonwealth for sexual harassment perpetrated by defence members, and includes the reasonable steps exemption.

127. The amendments would also make technical updates to the vicarious liability provision to improve the readability of the clause and clarify that the new subclause providing for the vicarious liability of the Commonwealth for acts of defence members does not limit sections 550 and 793 of the FW Act. Sections 550 and 793 deal with third party involvement in a contravention and liabilities of bodies corporate, respectively.

Flexible work

Amendment 17: Schedule 1, item 459, page 129 (line 27)

128. This amendment would correct a typographical error in proposed new section 65A.

129. The non-exhaustive list of reasonable business grounds would not be changed by this proposed amendment.

Amendment 18: Schedule 1, item 459, page 130 (after line 16), at the end of subsection 65A(5)

130. This amendment would insert a note at the end of subsection 65A(5) (which sets out a non-exhaustive list of reasonable business grounds for refusing a request for a flexible working arrangement). The note would make clear that the size and nature of the enterprise carried out by the employer is among the specific circumstances that may be considered when considering whether the employer has reasonable business grounds for refusing the request. This recognises that what is reasonable to accommodate may differ significantly between businesses, depending on their circumstances. The note also provides a relevant example.

Amendment 19: Schedule 1, item 463, page 133 (after line 25), after subsection 65C(2)

131. This amendment would insert new subsection 65C(2A) into the Act, which would clarify that the FWC cannot make an order:

that would be inconsistent with a provision of the Act or a fair work instrument that applies to the employee and employer (other than a previous order made by the FWC under these provisions). This amendment is modelled on existing subsection 739(5), which applies to FWC consent arbitration.

132. One situation in which this may arise is where a fair work instrument provides for rates of pay, penalty rates or other conditions that apply to certain patterns of work. An order of the FWC may not be inconsistent with or less favourable than those provisions. For example, an enterprise agreement may provide that firefighters working non-standard roster patterns get paid at the same rate as firefighters working on a 10/14 shift roster. An order of the FWC could not provide for a rate of pay for the non-standard roster pattern that was inconsistent with this requirement.

133. 'Fair work instrument' is defined in section 12 to include a modern award, enterprise agreement, workplace determination or an FWC order.

Terminating an enterprise agreement

Amendment 20: Schedule 1, item 471, page 136 (after line 3)

134. New subsection 226(1) of the FW Act would provide that the FWC must (on application) terminate an enterprise agreement that has passed its nominal expiry date if satisfied that any of three grounds have been met. Broadly, the grounds for termination relate to the continued operation of the agreement being unfair for employees, the agreement being unlikely to cover any employees, or the continued operation of the agreement posing a significant threat to the viability of a business (subject to certain other requirements and safeguards for employees having been met).

135. This amendment would insert new subsection 226(1A), which provides that the FWC must terminate the enterprise agreement under subsection 226(1) only if satisfied that it is appropriate in all the circumstances to do so (provided that the criteria in subsection 226(1) are met).

136. Building this further discretion into the test would better enable the FWC to take into consideration the views of the parties, the impact on any bargaining for a replacement agreement that is occurring, and any other relevant matters (in accordance with new subsections 226(3), (4) and (5)).

"Zombie" agreements

Amendment 21: Schedule 1, item 481, page 145 (after line 9), after subitem 20A(10)

Amendment 22: Schedule 1, item 482, page 148 (after line 30), after subitem 26A(10)

Amendment 23: Schedule 1, item 483, page 151 (after line 28), after subitem 30(9)

137. Amendments 21, 22 and 23 would insert new subitems 20A(10A)-(10C) of Schedule 3, 26A(10A)-(10C) of Schedule 3A, and 30(9A)-(9B) of Schedule 7 into the FW Transitional Act.

138. These new subitems would:

139. In respect of the publication of a collective zombie agreement, the FWC may consider that the details of signatories to the agreement do not form part of the agreement and are therefore not required to be published.

Single interest employer authorisations

Amendment 24: Schedule 1, item 489, page 155 (line 8)

Amendment 25: Schedule 1, item 490, page 155 (lines 13 to 14)

Amendment 41: Schedule 1, item 523, page 162 (lines 11 to 12)

Amendment 54: Schedule 1, item 543, page 174 (line 13)

Amendment 82: Schedule 1, item 627, page 201 (lines 3 to 8)

140. Under paragraph 172(5)(c) of the FW Act, employers that are specified in a single interest employer authorisation that is in operation in relation to a proposed enterprise agreement are single interest employers. The proposed enterprise agreement made in reliance on that authorisation is a single enterprise agreement. These amendments would make consequential changes to various provisions of the FW Act to reflect the repeal of the term 'single interest employers' in subsection 172(5) of the FW Act and the change to an enterprise agreement made in reliance on a single interest employer authorisation from being a single enterprise agreement to a multi-enterprise agreement.

141. Amendment 24 would amend item 489 of the Bill to omit the word "certain" from the amended heading to section 173(1) of the FW Act.

142. Amendment 25 would amend item 490 of the Bill by omitting the words "or an agreement in relation to which a single interest employer authorisation is in operation" from the amended subsection 173(1) of the FW Act. Amendments 24 and 25 would make clear that only employers for single enterprise agreements, including related employers, need to take all reasonable steps to give notice of the right to be represented by a bargaining representative to employees who will be covered by the agreement and are employed at the notification time for the agreement.

143. Amendment 41 would amend item 523 of the Bill to omit the words "or an agreement in relation to which a single interest employer authorisation is in operation" from new subsection 173(2A) of the FW Act (which sets out when a bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may give the employer who will be covered by the proposed agreement a request in writing to bargain for the agreement). This amendment is consequential on an agreement made in reliance on a single interest employer authorisation being classified as a multi-enterprise agreement.

144. Amendment 54 would amend item 543 of the Bill by inserting the word "single interest employer authorisation" after the word "authorisation" in new subsection 234(2) of the FW Act. This would make clear that an intractable bargaining declaration may be made in relation to a proposed multi-enterprise agreement where a supported bargaining authorisation or a single interest employer authorisation is in operation in relation to the agreement.

145. Amendment 82 would omit item 627 of the Bill and insert new items 627 and 627A-C. New item 627 would insert a new definition of single interest employer agreement into the Dictionary in section 12 of the FW Act. The definition would provide that a multi-enterprise agreement is a single interest employer agreement if a single interest employer authorisation was in operation in relation to the agreement immediately before the agreement was made.

146. New item 627A would update the guide to Part 2-4 of the FW Act to remove the sentence which specifies that the effect of a single interest authorisation is that the employers specified in the authorisation are single interest employers in relation to a proposed agreement.

147. New item 627B would amend subsections 172(2) and (3) of the FW Act to omit references to the term "single interest employers" and substitute them with "related employers".

148. New item 627C would repeal subsection 172(5) which specifies when two or more employers are single interest employers. The item would then insert new subsections 172(5) and (5A). New subsection 172(5) would provide that despite any other provision of Part 2-4, if an employer is specified in a single interest employer authorisation that is in operation, the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a single interest employer agreement, and the employer must not initiate bargaining, agree to bargain, or be required to bargain with those employees for any other kind of enterprise agreement. New subsection 172(5A) would provide that two or more employers are related employers if the employers are engaged in a joint venture or common enterprise; or the employers are related bodies corporate. These employers will continue to make single-enterprise agreements.

149. The combined effect of Amendment 82 is that the concept of single interest employers will be removed from the FW Act. Only an employer, or two or more employers that are related employers may make a single enterprise agreement with relevant employees and one or more relevant employee organisations. Two or more employers that are not all related employers may make a multi-enterprise agreement with relevant employees and one or more relevant employee organisations. This means that employers that are specified in a single interest employer authorisation that is in operation in relation to a proposed enterprise will ultimately make a type of multi-enterprise agreement (a single interest employer agreement) with the relevant employees and employee organisations, subject to the transitional arrangements.

Amendment 83: Schedule 1, item 629, page 201 (line 24)

Amendment 85: Schedule 1, item 629, page 203 (line 14)

150. These amendments would make technical updates to new paragraphs 216D(1)(b) and 216DB(1)(b) which sit within new Subdivision AD—Variation of single interest employer agreement to add employer and employees, within Division 7 of Part 2-4 of the FW Act (to be inserted by item 629 of the Bill). These amendments would insert the words "by the employer" after the word "employed" in these paragraphs to make clear that only employees who are employed by the employer are the 'affected employees' for a variation of a single interest employer agreement under these provisions.

Amendment 86: Schedule 1, item 629, page 204 (line 3) to page 205 (line 15)

151. Amendment 86 would omit new subsections 216DC(1) to (3) of the FW Act, to be inserted by item 629 of the Bill. The amendment would insert a new section 216DC into the FW Act. New section 216DC would more clearly delineate the requirements of which the FWC must be satisfied before approving a variation of a single interest employer agreement to cover a new employer and its employees depending on whether the application for the variation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer agreement covers common interest employers or franchisees. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

Approval of variat ion by the FWC

152. New subsection 216DC(1) would provide that the FWC must approve a variation of a single interest employer agreement if two criteria are met. The first is that an application for approval of the variation has been made under section 216DA (application by employer) or 216DB (application by employee organisation). The second criterion is met when the FWC is satisfied of three additional matters. These are:

Additional requirements for application by employee organisation

153. If the application for variation was made by an employee organisation under new paragraph 216DC(1)(b)(iii), the requirements of new subsection 216DC(1A) must be met. New subsection 216DC(1A) would provide that the requirements of this subsection are met if:

154. New subsection 216DC(1B) would provide that for the purposes of paragraph (1A)(b), the FWC may work out whether a majority of the affected employees want to be covered by the agreement using any method the FWC considers appropriate.

155. For the purposes of new paragraph 216DC(1A)(c), the FWC must approve a variation of a single interest employer agreement to cover a new employer and its employees where the application has been made by an employee organisation and subsection (1C) does not apply to the employer. Subsection 216DC(1C) will apply to the employer if:

Franchisees

156. New subparagraph 216DC(1)(b)(iv) would provide that the FWC must approve a variation of a single interest employer agreement to cover a new employer and its employees if the requirements of subsections 216DC(2) or (3) are met. Subsection 216DC(2) would prescribe the requirements that are to be met for employers who are franchisees. The requirements of this subsection would be met if the employers covered by the agreement and the employer that will be covered by the agreement carry on similar business activities under the same franchise and are:

Common interest employers

157. Subsection 216DC(3) would prescribe the requirements that are to be met for employers who are common interest employers. This term is used to identify single interest employers who are not franchisees (see above). The requirements of this subsection would be met if it is appropriate to approve the variation, having regard to:

158. For example, employers specified in a supported bargaining authorisation would not meet the public interest criterion as proposed subsection 172(7)(a) provides that the only kind of enterprise agreement the employer may make with their employees who are specified in the authorisation is a supported bargaining agreement.

159. In performing its functions or exercising its powers generally under the FW Act, the FWC is required to have regard to the objects of the FW Act and the objects of any relevant Part of the FW Act (in existing section 578(a)). For example, when considering whether it would be contrary to the public interest to approve the variation, the FWC would have regard to the objects of the FW Act (contained in section 3), such as whether making the variation will promote productivity and economic growth while being fair to working Australians, and the objects of Part 2-4 (contained in section 171), such as whether approving the variation promotes collective bargaining in good faith, particularly at the enterprise level.

160. New subsection 216DC(3A) would provide that or the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

161. When considering the nature of the enterprises, factors such as the relative size and scope of the enterprises would be relevant.

Employers and employees that are already bargaining

162. Subsection 216DC(3B) would provide that despite new subsection 249(1), the FWC may refuse to approve the variation if the FWC is satisfied that the employer, or a bargaining representative of the employer, and an employee organisation that is entitled to represent the industrial interests of one or more of the affected employees have agreed that:

163. For the purposes of paragraph 216DC(3B)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT).The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the agreement to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under proposed section 216DC(1C)(b).

164. Overall, new subsection 216DC(3B) would provide the FWC discretion to refuse an application for a variation of a single interest employer agreement to cover a new employer and its employees, even if the requirements in subsection 216DC(1) are met, if the FWC is satisfied that the variation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with affected employees in appropriate circumstances.

Amendment 89: Schedule 1, item 629, page 205 (line 26)

Amendment 93: Schedule 1, item 629, page 206 (line 20)

165. These amendments would make a consequential update to new subsection 216DD, to be inserted by item 629 of the Bill, to replace the references to paragraph 216DC(1)(d) with references to subparagraph 216DC(1)(b)(ii) (which now provides that for circumstances in which the FWC must be satisfied that the variation has been genuinely agreed to).

Amendment 94: Schedule 1, page 207 (after line 8), after item 629

166. Amendment 94 would insert new item 629A into the Bill. New item 629A would amend subsection 229(2) of the FW Act by inserting the words "single interest employer authorisation" after the word "authorisation". Section 229 of the FW Act sets out when applications can be made for bargaining orders. This amendment is consequential on the change in classification for these agreements to multi-enterprise agreements and would extend the availability of bargaining orders to a proposed multi-enterprise agreement where a single interest employer authorisation is in operation. This would effectively preserve the status quo.

Amendment 95: Schedule 1, page 207 (after line 13), after item 630

167. Amendment 95 would insert new items 630A and 630B into the Bill. Existing subsection 238(2) of the FW Act prohibits a bargaining representative applying for a scope order if a single interest employer authorisation is in operation. New item 630A would repeal subsection 238(2) of the FW Act to reflect the fact that a single interest employer agreement will be a multi-enterprise agreement and that scope orders only remain available for proposed single enterprise agreements (other than greenfields agreements). This would effectively preserve the status quo.

168. Existing section 240(2) of the FW Act provides that a bargaining representative for a proposed enterprise agreement that is either a single enterprise agreement or a multi-enterprise agreement in relation to which a low paid authorisation is in operation, may apply to the FWC unilaterally (without agreement of the other bargaining representatives) for the FWC to deal with a bargaining dispute about the proposed agreement. New item 630B would insert a new subsection 240(2)(c) to provide that a unilateral application for the FWC to deal with a bargaining dispute may also be made if the proposed agreement is a multi-enterprise agreement in relation to which a single interest employer authorisation is in operation.

Amendment 96: Schedule 1, item 633, page 207 (lines 27 to 32)

169. Amendment 96 would omit Notes 1 and 2 from new subsection 248(1) of the FW Act, to be inserted by item 633 of the Bill. Note 1 provided that the effect of a single interest employer authorisation is that the employers are single interest employers in relation to the agreement. The repeal of this Note 1 is consequential on the change of a single interest employer agreement to a multi-enterprise agreement. Note 2 provided that a person cannot be a bargaining representative if they are excluded for the purposes of the agreement by an order under new section 178C. The repeal of Note 2 is consequential on the replacement of section 178C by another amendment(see new Part 23A).

Amendment 97: Schedule 1, page 207 (after line 32), after item 633

170. Amendment 97 would insert new item 633A into the Bill. New item 633A would repeal subsection 249(1) and substitute it with new subsection 249(1), which sets out when the FWC must make a single interest employer authorisation.

171. New subsection 249(1) would delineate the requirements of which the FWC must be satisfied before making a single interest employer authorisation depending on whether the application for the authorisation was made by the employer and its employees, or an employee organisation. It would also clarify the requirements of which the FWC must be satisfied depending on whether the single interest employer authorisation is to operate in respect of two or more common interest employers or franchisees. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

Single interest em ployer authorisation

172. New subsection 249(1) would provide that the FWC must make a single interest employer authorisation in relation to a proposed enterprise agreement if an application for the authorisation has been made and the FWC is satisfied that all of the following requirements are met:

Additional requirements for application by employers

173. If the application for a single interest employer authorisation was made by two or more employers, under paragraph 248(1)(a), new subparagraph 249(1)(b)(iii) would provide that the requirements of new subsection 249(1A) must be met. New subsection 249(1A) would provide that the requirements of this subsection are met if:

Additional requirements for application by bargaining representative

174. If the application for a single interest employer authorisation was made by a bargaining representative under paragraph 248(1)(b), new subparagraph 249(1)(b)(iv) would provide that each employer must have either consented to the application, or be covered by new subsection (1B). New subsection 249(1B) would provide that an employer is covered by this subsection if:

175. New subsection 249(1C) would provide that for the purposes of new paragraph (1B)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

176. New paragraph 249(1B)(e) would provide that an employer is covered by new subsection 249(1B) if new subsection (1D) does not apply to the employer. New subsection 249(1D) sets out criteria that will preclude an employer being compelled into a single interest employer authorisation (on application by a bargaining representative of an employee). New subsection 249(1D) applies to an employer if:

Amendment 98: Schedule 1, item 634, page 208 (line 1) to page 209 (line 22)

177. Amendment 98 would omit item 634 of the Bill (which repealed subsection 249(3) of the FW Act and substituted it with new subsections 249(3) and (3A)-(3D)). Amendment 98 would then insert new items 634 and 634A into the Bill.

178. New item 634 would omit the words "if the FWC is satisfied that" from subsection 249(2) of the FW Act which sets out when employers are franchisees when applying for a single interest employer authorisation.

179. New item 634A would repeal subsection 249(3) (employers that may bargain together for an agreement) and substitutes it with new subsections 249(3) and (3A). New subsection 249(3) would provide that the requirements of this subsection are met if:

180. For example, employers specified in a supported bargaining authorisation (in respect of the same employees) would not meet the public interest criterion as new subsection 172(7)(b) provides that the employer must not initiate bargaining, agree to bargain or be required to bargain with employees specified in the supported bargaining authorisation for any other kind of enterprise agreement.

181. In performing its functions or exercising its powers generally under the FW Act, the FWC is required to have regard to the objects of the FW Act and the objects of any relevant Part of the FW Act (in existing section 578(a)). For example, when considering whether it would be contrary to the public interest to approve the variation, the FWC would have regard to the objects of the FW Act (contained in section 3), such as whether making the variation will promote productivity and economic growth while being fair to working Australians, and the objects of Part 2-4 (contained in section 171), such as whether approving the variation promotes collective bargaining in good faith, particularly at the enterprise level.

182. New subsection 249(3A) would provide that for the purposes of paragraph (3)(a), matters that may be relevant to determining whether the employers have a common interest include the following:

183. When considering the nature of the enterprises, factors such as the relative size and scope of the enterprises would be relevant.

Amendment 99: Schedule 1, item 635, page 209 (line 24)

184. Amendment 99 would amend item 635 of the Bill. Item 635 of the Bill would amend existing subparagraph 249(4)(b)(i) of the FW Act to provide that a single interest employer authorisation ceases to be in operation at the earlier of the following:

185. Item 635 would omit the words 'day on which' from subparagraph 249(4)(b)(i) of the FW Act and substitutes them with 'at the same time as'. The subparagraph as set out in the Bill would therefore read as 'the at the same time as the enterprise agreement to which the authorisation is made'. The remaining 'the' at the start of the subparagraph creates a grammatical error. This amendment would correct the grammatical error.

Amendment 101: Schedule 1, item 636, page 209 (line 25) to page 210 (line 6)

186. Amendment 101 would omit item 636 of the Bill (which would insert new section 249A of the FW Act) and substitute it with new items 636 and 636A of the Bill.

187. New item 636 of the Bill would amend subsection 250(2) of the FW Act by omitting the words "employers that may bargain together for a proposed enterprise agreement" and substituting them with "common interest employers". Amended subsection 250(2) of the FW Act would provide that if the FWC is satisfied of the matters specified in subsection 249(2) or (3) (which deal with franchisees and common interest employers) in relation to only some of the employers that will be covered by the agreement, the FWC may make a single interest employer authorisation specifying those employers and their employees only. The term 'common interest employers' would be introduced by these amendments and used to identify those single interest employers who are not franchisees.

188. New item 636A would insert new subsections 250(3) and (4). New subsection 250(3) would provide that the FWC may make a single interest employer authorisation that does not specify one or more employers specified in an application for the authorisation, and the employees (the relevant employees) of those employers specified in that application, if the FWC is satisfied that:

189. For the purposes of paragraph 250(3)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT). The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the agreement to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under new section 249(1D)(b).

190. Overall, new subsection 250(3) would provide the FWC discretion to refuse an application for a single interest employer authorisation, even if the requirements in new subsection 249(1) are met, if the FWC is satisfied that the authorisation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.

191. New subsection 250(4) would provide that, if the effect of subsection (3) is that no employers would be specified in the authorisation, the FWC may refuse the application for the authorisation.

Amendment 103: Schedule 1, items 638 and 639, page 210 (line 30) to page 212 (line 17)

192. Amendment 103 would omit items 638 and 639 of the Bill (which would have amended existing subsections 251(3) and (4) which enable applications to be made to add or remove an employer from a single interest employer authorisation). Amendment 102 would then insert new item 638 into the Bill. New item 638 would substitute them with new subsections 251(3)-(8).

Variation to add employer

193. New subsection 251(3) would provide that the following may apply to the FWC for a variation of a single interest employer authorisation to add the name of an employer (the new employer) that is not specified in the authorisation to the authorisation:

194. New subsection 251(4) would provide that the FWC must vary the authorisation to add the new employer's name if an application for the variation has been made and the FWC is satisfied of all of the following:

Additional requirements for application by bargaining representative

195. Pursuant to new subparagraph 251(4)(b)(iii), if an application to add an employer to a single interest employer authorisation is made by a bargaining representative of an employee, the FWC must be satisfied that the requirements in new subsection 251(5) are met before varying the authorisation. The requirements of new subsection 251(5) are met if:

196. New subsection 251(6) would provide that for the purposes of paragraph (5)(d), the FWC may work out whether a majority of employees want to bargain using any method the FWC considers appropriate.

197. New subsection 251(7) would apply to an employer if:

Employers and employees that are already bargaining

198. New subsection 251(8) would provide that despite subsection 251(4), the FWC may refuse to vary the authorisation if the FWC is satisfied that:

199. For the purposes of new paragraph 251(8)(b), an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT).The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to vary the authorisation to add the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under new section 251(7) but would be relevant where the parties were bargaining for a co-operative workplaces agreement, provided the other criteria were met.

200. Overall, new subsection 251(8) would provide the FWC discretion to refuse an application to vary a single interest employer authorisation to add a new employer, even if the requirements in new subsection 251(4) are met, if the FWC is satisfied the variation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.

Amendment 106: Schedule 1, Part 21, page 213 (after line 19), at the end of the Part

201. Amendment 106 would insert new item 640A into the Bill. New item 640A would repeal subsection 477(2) of the FW Act and substitute it with new subsection 477(2).

202. Existing subsection 477(1) of the FW Act applies if Part 3-3 of the FW Act (which sets out provisions for the taking of protected industrial action) permits an application to be made by a bargaining representative of an employer that will be covered by a proposed single-enterprise agreement. New subsection 477(2) would provide that if the agreement will cover more than one employer, the application may be made by a bargaining representative of an employer that will be covered by the agreement, on behalf of one or more other such bargaining representatives, if those other bargaining representatives have agreed to the application being made on their behalf. New subsection 477(2) reflects the change of a single interest employer agreement to a multi-enterprise agreement, but still acknowledges that a proposed single-enterprise agreement (in respect of which protected industrial action may be taken under Part 3-3 of the FW Act) may still cover two or more employers that wish to make a joint application.

Amendment 107: Schedule 1, item 641, page 214 (lines 6 to 7)

Amendment 108: Schedule 1, item 641, page 214 (line 9)

Amendment 109: Schedule 1, item 641, page 214 (line 13)

Amendment 110: Schedule 1, item 641, page 214 (lines 20 to 26)

Amendment 111: Schedule 1, item 641, page 215 (line 18)

Amendment 112: Schedule 1, item 641, page 216 (lines 9 to 10)

Amendment 113: Schedule 1, item 641, page 216 (lines 12 to 13)

Amendment 114: Schedule 1, item 641, page 216 (line 31)

Amendment 115: Schedule 1, item 641, page 217 (lines 4 to 6)

Amendment 116: Schedule 1, item 641, page 217 (line 7)

203. These amendments would make technical updates to new Subdivision AE of the FW Act (to be inserted by item 641 of the Bill) which would permit a single interest employer agreement or a multi-enterprise agreement to be varied to remove an employer and its employees. These amendments would amend headings and provisions in new Subdivision AE to reflect the change in treatment of a single interest employer agreement as a single-enterprise agreement, to a multi-employer agreement.

Amendment 117: Schedule 1, item 642, page 218 (line 7)

204. Amendment 117 would amend item 642 of the Bill. Item 642 of the Bill would introduce the definition of a cooperative workplace agreement into the Dictionary in section 12 of the FW Act. Amended item 642 would provide a consequential amendment that a multi-enterprise agreement is a cooperative workplace agreement if there was no supported bargaining authorisation or single interest employer authorisation in operation in relation to the agreement immediately before the agreement was made.

Amendment 138: Schedule 1, item 660, page 237 (line 24)

205. Amendment 138 would make an amendment to item 660 of the Bill which would insert new subclause 74(2) of Part 13 (Application, saving and transitional provisions relating to amendments to this Act) into Schedule 1 to the FW Act. The amendment would omit subclause 74(2) and substitute it with a new subclause 74(2), which would provide that despite the amendments of Division 10 of Part 2-4 made by Part 21 of Schedule 1 of the amending Act, that Division continues to apply as though the amendments had not been made. The effect of amendment 30 would be that if an application for a Ministerial declaration under subsection 247(1) of the FW Act and, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, the Minister had not made a decision on the application, the existing provisions of Division 10 of Part 2-4 of the FW Act are preserved and continue to apply in relation to that application.

Amendment 139: Schedule 1, item 660, page 237 (line 28)

Amendment 140: Schedule 1, item 660, page 238 (line 16)

Amendment 141: Schedule 1, item 660, page 238 (line 19)

206. These amendments would make technical updates to the transitional provisions in relation to single interest employer authorisations, to be inserted by item 660 of the Bill.

207. Amendment 139 would make a technical correction to subclause 75(1) of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act by omitting the reference to subsection 247(1) and inserting a reference to subsection 247(3). The effect of amendment 30 would be that if a Ministerial declaration is made under subsection 247(3) of the FW Act, but immediately before the commencement of Part 21 of Schedule 1 to the Amending Act, 2 or more of the employers to whom the declaration relates had not made an application for an authorisation, the existing provisions of Division 10 of Part 2-4 of the FW Act are preserved and continue to apply to an application for an authorisation made after that commencement.

208. Amendment 140 would make a technical correction to clause 77 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act by omitting the reference to subsection 249A and inserting a reference to new paragraph 172(5)(b) (which provides that if an employer is specified in a single interest employer authorisation that is in operation, the employer must not initiate bargaining, agree to bargain, or be required to bargain with the relevant employees for any other kind of enterprise agreement).

209. Amendment 141 would omit the words "whether the authorisation was made before" from clause 77 and substitute them with "if the authorisation was made".

210. The effect of amendments 138 and 139 would be that new paragraph 172(5)(b) applies in relation to single interest employer authorisations on or after the commencement of Part 21 of Schedule 1 to the amending Act if the authorisation was made on or after that commencement. This would apply where authorisations are made under the new provisions of Part 21 and the provisions in new clause 78B of the new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act do not apply.

Amendment 142: Schedule 1, item 660, page 238 (lines 21 to 29)

211. Amendment 142 would omit clause 78 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act and substitute it with new clauses 78, 78A, 78B and 78C.

212. New clause 78 would provide that the amendments to section 251 made by Part 21 of Schedule 1 to the amending Act do not apply in relation to variations made before the commencement of that Part.

213. New subclause 78A(1) would apply in respect of two or employers that were, immediately before the commencement of Part 21 of Schedule 1 to the amending Act, specified in a single interest employer authorisation that is in operation. New subclause 78A(2) would provide that for the purposes of section 172 of the Act, the employers are taken to be related employers within the meaning of subsection 172(5A). The effect of this new subclause would be that any single interest employer agreement made in reliance on that authorisation would be a single-enterprise agreement, as they were before the amendments in Part 21 commenced.

214. New clause 78B would provide that if, because of the operation of clauses 74, 75 or 76 of new Part 13 (Application, saving and transitional provisions relating to amendments to this Act) of Schedule 1 to the FW Act, the FWC makes a single interest employer authorisation after the commencement of Part 21 of Schedule 1 to the amending Act:

215. The effect of new subclause 78B would be that any resulting single interest employer agreement made by those employers would be a single-enterprise agreement.

216. New clause 78C would provide that despite the repeal of subsection 238(2) of the FW Act (which prohibits a bargaining representative from applying for a scope order if a single interest employer authorisation is in operation in relation to the agreement) by Part 21 of Schedule 1 to the amending Act, the subsection continues to apply after the commencement of Part 21 to proposed single-enterprise agreements in relation to which a single interest authorisation is in operation.

Amendment 148: Schedule 1, item 661, page 241 (lines 22 to 23)

Amendment 149: Schedule 1, item 662, page 242 (lines 12 to 13)

217. Amendments 148 and 149 would make technical updates to the new definitions of 'affected employees' and 'made' to be inserted into the Dictionary in section 12 of the FW Act by items 661 and 662, as they relate to new Subdivision AE of Division 7 of Part 2-4 (variation of single interest employer agreement or cooperative workplace agreement to remove employer and employees). The updates are consequential on the change in treatment of a single interest employer agreement from a single-enterprise agreement, to a multi-enterprise agreement.

Enterprise agreement pre-approval requirements

Amendment 26: Schedule 1, item 495, page 156 (line 3)

Amendment 27: Schedule 1, item 496, page 156 (lines 4 to 5)

Amendment 28: Schedule 1, item 498, page 156 (lines 8 to 9)

Amendment 29: Schedule 1, item 506, page 157 (lines 6 to 7)

218. Section 180 of the FW Act sets out requirements that an employer must comply with before requesting that employees vote to approve a proposed enterprise agreement. These amendments would omit items in Part 14 the Bill that would repeal the pre-approval requirements in subsections 180(5)-(6) of the FW Act and make consequential changes to other items that would amend section 180. Subsection 180(5)-(6) require the employer, prior to putting the agreement to a vote, to explain the terms of a proposed enterprise agreement, and their effect to relevant employees in an appropriate manner, having regard to their needs and circumstances. The amendments would therefore ensure that this key employee safeguard is retained in the FW Act.

219. Amendment 26 would amend item 495 of the Bill by omitting the amended heading to section 180 of the FW Act ("Employees must be given copy of disclosure documents etc") and substituting it with the heading "Certain preapproval requirements".

220. Amendment 27 would omit item 496 in the Bill. Item 496 would have repealed the heading to subsection 180(1) of the FW Act. This would mean that the heading "Pre-approval requirements" above subsection 180(1) is retained.

221. Amendment 28 would omit item 498 of the Bill. Item 498 would have repealed the heading to subsection 180(4A) of the FW Act. This would mean that the heading "Employees must be given a copy of disclosure documents etc" is retained.

222. Item 506 of the Bill would have repealed the pre-approval requirements in subsections 180(5)-(6) of the FW Act. Subsection 180(5) of the FW Act provides that prior to putting a proposed agreement to a vote, the employer must take all reasonable steps to ensure that the terms of their agreement and their effect are explained to the relevant employees; and that the explanation is provided in an appropriate manner taking into account the relevant employees' particular needs and circumstances. Subsection 180(6) sets out examples of the kinds of employees whose circumstances and needs are to be considered for the purposes of subsection 180(5). Amendment 29 would omit item 506 of the Bill and substitute it with new items 506 and 506A. This would mean that subsections 180(5)-(6) of the FW Act are retained, with some consequential amendments.

223. Amendment 29 would insert Items 506 and 506A that would make consequential amendments to the wording of paragraphs 180(5)(a) and 180(5)(b) of the FW Act to reflect the proposed repeal of subsection 180(2) of the FW Act which defines "relevant employees".

Amendment 32: Schedule 1, item 509, page 158 (after line 30)

Amendment 34: Schedule 1, item 509, page 158 (line 36)

Amendment 35: Schedule 1, item 509, page 159 (after line 5)

224. Item 509 of the Bill would repeal section 188 of the FW Act and substitute it with new section 188. New section 188 would set out the factors that the FWC must consider when determining whether an enterprise agreement has been genuinely agreed to by the employees covered by the agreement. These amendments would make consequential changes to new section 188 to reflect the retainment of subsections 180(5)-(6) of the FW Act (which require an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs) and the requirement that the FWC must be satisfied that these subsections have been met before determining that an enterprise agreement has been genuinely agreed to.

225. Amendment 32 would insert new subsection 188(4A) into the FW Act. New subsection 188(4A) would provide that the FWC cannot be satisfied that the agreement has been genuinely agreed to by the employees covered by the agreement unless the FWC is satisfied that the employer complied with subsection 180(5) in relation to the agreement.

226. Amendments 34 and 35 would make consequential amendments to proposed new section 188(5) of the FW Act to make clear that in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees covered by the agreement, the FWC may also disregard minor procedural or technical errors in respect of subsection 180(5) of the FW Act) (which requires an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs, prior to the vote occurring).

Amendment 38: Schedule 1, item 512, page 160 (lines 15 to 16)

227. Amendment 38 would omit Item 512 from the Bill. Item 512 would repeal existing paragraph 211(3)(a) of the FW Act. The result of this amendment is that paragraph 211(3)(a) would be retained, which provides that section 180 (which deals with pre-approval steps) must be taken into account by the FWC, with prescribed modifications, when deciding whether to approve a variation of an enterprise agreement.

Amendment 39: Schedule 1, item 513, page 160 (lines 17 to 24)

228. Amendment 39 would omit item 513 of the Bill and substitute it with new items 513, 513A and 513B. New items 513 and 513A of the Bill would make consequential amendments to existing paragraphs 211(3)(d) and (e) to reflect the retainment of subsections 180(5)-(6) of the FW Act (which require an employer to explain the terms of an agreement and their effect to employees in a manner appropriate to their circumstances and needs) and the requirement for the FWC to consider these subsections when deciding whether it must approve a variation of an enterprise agreement.

229. New item 513B of the FW Act would insert new paragraph 211(3)(fa) into the FW Act. This paragraph would provide that when the FWC is deciding whether it must approve a variation of an enterprise agreement, it must take into account section 180 (which deals with preapproval steps) which has effect as if subsections 180(4A)-(4C) (which deal with provision of disclosable benefits documents) and the word "bargaining" in paragraph 180(6)(c) were omitted. The practical effect of new item 513B would be that the FWC does not need to be satisfied that subsections 180(4A)-(4C) have been met for the proposed variation of an enterprise agreement.

Amendment 67: Schedule 1, item 597, page 189 (after line 22), after section 216A

Amendment 84: Schedule 1, item 629, page 202 (after line 11), after section 216D

Amendment 122: Schedule 1, item 649, page 222 (after line 22), after section 216C

230. These amendments would insert new sections 216AAA, 216DAA and 216CAA into the FW Act as part of the insertion of new Subdivisions AA (variation of supported bargaining agreement), AD (variation of single interest employer agreement) and AC (variation of cooperative workplace agreement) into existing Division 7 of Part 2-4 of the FW Act (which deals with variation of enterprise agreements). These new Subdivisions would set out the circumstances in which these enterprise agreements may be varied to cover a new employer and its employees, by agreement between those parties.

231. New subsections 216AAA(1), 216DAA(1) and 216CAA(1) would provide that before an employer requests that affected employees approve the proposed variation, the employer must take all reasonable steps to ensure that:

232. New subsections 216AAA(2), 216DAA(2) and 216CAA(2) would provide that without limiting paragraph 1(b), the following are examples of the kinds of employees whose circumstances and needs are to be taken into account for the purposes of complying with that paragraph:

Amendment 71: Schedule 1, item 597, page 191 (line 34)

Amendment 72: Schedule 1, item 597, page 191 (line 34), at the end of subsection 216AD(1)

Amendment 91: Schedule 1, item 629, page 206 (line 7)

Amendment 92: Schedule 1, item 629, page 206 (line 7), at the end of subsection 216DD(1)

Amendment 126: Schedule 1, item 649, page 224 (line 17)

Amendment 127: Schedule 1, item 649, page 224 (line 17), at the end of subsection 216CC(1)

233. These amendments would amend new subsections 216AD(1) (which would be inserted by item 597 of the Bill), 216DD(1) (which would be inserted by item 629 of the Bill) and 216CC(1) (which would be inserted by item 649 of the Bill). These subsections would provide that the FWC is to determine whether it is satisfied that a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to add a new employer and its employees has been genuinely agreed to by the affected employees in accordance with section 188 (which deals with genuine agreement), as modified.

234. Amendments 71, 91 and 126 would amend new paragraphs 216AD(1)(d), 216DD(1)(d) and 216CC(1)(d) to make clear that only new subsections 188(3) and (4) (which deal with the requirement to provide a NERR and the "21 days" rule) are to be omitted by the FWC when determining whether a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to cover a new employer and its employees has been genuinely agreed to. The FWC would still be required to consider new subsection 188(5) (prescribed minor procedural or technical errors may be disregarded) as it applies to a variation. However, paragraphs 188(5)(a), (b) and (c) would have no practical effect as sections 173, 174, subsections 181(2), 182(1) and (2) (also for which errors may be disregarded), do not apply to agreement variations of this kind.

235. Amendments 72, 92 and 127 would insert new paragraphs 216AD(1)(e), 216DD(1)(e) and 216CC(1)(e) into the FW Act. These new paragraphs would provide that when the FWC is to determine whether it is satisfied that a variation of a supported bargaining agreement, single interest employer agreement or cooperative workplace agreement to cover a new employer and its employees has been genuinely agreed to in accordance with section 188 (which deals with genuine agreement), subsections 188(4A) and (5) are to apply as if references to subsection 180(5) were references to section 216AAA, 216DAA or 216CAA as applicable. New paragraphs 216AD(1)(f), 216DD(1)(f) and 216CC(1)(f) are inserted into the FW Act and provide in determining whether minor errors may be disregarded under new subsection 188(5) inserted by Item 509 of the Bill, references to when an enterprise agreement is made are instead references to when the relevant variation is made. The practical effect of these amendments is that before determining that a variation of one of these types has been genuinely agreed to, the FWC must be satisfied that the employer has explained the terms of the supported bargaining agreement, single interest employer agreement or cooperative workplace agreement and their effect to employees in a manner appropriate to their circumstances and needs, prior to the vote for the variation.

Genuine agreement of employers

Amendment 119: Schedule 1, item 647, page 221 (before line 16), before subsection 186(2A)

236. Subsection 186 sets out various requirements that the FWC must take into account when approving enterprise agreements. Paragraph 186(2)(b) provides that if the agreement is a multi-enterprise agreement, each employer has genuinely agreed to be covered by the agreement and no person coerced any of the employers to make the agreement.

237. New subsection 186(2AA) would provide that, for the purposes of paragraph 186(2)(b), only the actions of an employer who bargained for the agreement should be taken into account. For example, an order made by the FWC on application of an employee organisation for the employer to be joined to an authorisation would be disregarded for the purpose of determining whether the employer has genuinely agreed to the agreement. Similarly, an order made by the FWC in these circumstances would not amount to coercion. Further, anything authorised by or under the FW Act—such as protected industrial action taken by the employer's employees during bargaining—would not amount to coercion.

Amendment 145: Schedule 1, item 660, page 239 (before line 16), before clause 81

238. This amendment provides that new subsection 186(2AA) applies to the approval of an enterprise agreement by the FWC after the commencement of the new subsection. Section 186 sets out various requirements that the FWC must take into account when approving enterprise agreements. New subsection 186(2AA) is in Part 23 which commences at the same time as Part 20, which commences on Proclamation.

Minimum bargaining period for intractable bargaining declarations

Amendment 53: Schedule 1, page 173 (after line 5), after item 537

Amendment 55: Schedule 1, item 543, page 174 (line 21), at the end of subsection 235(1)

Amendment 56: Schedule 1, item 543, page 175 (line 11), at the end of section 235

239. These amendments would require that before issuing an intractable bargaining declaration, the FWC must be satisfied that a prescribed minimum period of good faith bargaining has elapsed.

240. Amendment 53 would amend section 12 of the FW Act by inserting a new signpost definition of 'end of the minimum bargaining period'.

241. Item 543 of the Bill would repeal existing Subdivision B of Division 8 of Part 2-4 of the FW Act, which relates to applications for serious breach declarations, and substitute new provisions dealing with applications for intractable bargaining declarations.

242. New section 235 would set out when the FWC may have discretion to make an intractable bargaining declaration, requiring an application for the declaration to have been made by a bargaining representative and the FWC to be satisfied of the matters set out in subsection 235(2). New subsection 235(2) would provide that:

FWC must be satisfied the applicant 'participated' in the relevant processes before making an intractable bargaining declaration, including attending mandatory conciliation. However, FWC would not be able to consider what occurred during conciliation, as these conferences are conducted in confidence.

243. Amendment 55 would insert a further requirement in new paragraph 235(1)(c), providing that the FWC must also be satisfied that it is after the end of the minimum bargaining period before making an intractable bargaining declaration.

244. Amendment 56 would insert new subsection 235(5), setting out the meaning of "end of the minimum bargaining period", which would be calculated in one of two ways—depending on whether the bargaining is to replace an existing enterprise agreement or not.

245. Where an existing enterprise agreement(s) applies to any of the employees that will be covered by the proposed agreement, the end of the minimum bargaining period would be the earlier of:

246. Where the proposed enterprise agreement is not replacing an existing enterprise agreement, the end of the minimum bargaining period would be three months after an application has been made under section 240 in relation to the proposed enterprise agreement. If there have been multiple applications under section 240 made for the FWC to deal with a bargaining dispute in relation to a proposed enterprise agreement, it is intended that the end of the minimum bargaining period would occur three months after the first such application.

247. Amendments that would be made to section 173 by items 522 and 523 of the Bill may be instructive in determining when a proposed enterprise agreement is intended to replace an existing enterprise agreement.

Bargaining disputes

Amendment 57: Schedule 1, page 177 (after line 12), after item 548

248. Existing subsection 270(3) provides that a bargaining related workplace determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the post-declaration negotiating period. Amendment 57 would insert a new item 548A that would repeal and substitute a new subsection 270(3). New subsection 270(3) would provide that a bargaining related workplace determination must include the terms that the FWC considers deal with the matters that were still at issue after the end of the post-declaration negotiating period if there is such a period, or otherwise after making the declaration. This amendment is necessary as new section 235A (inserted by item 543) would not mandate the provision of a post-declaration negotiation period. New subsection 270(3) would cater for instances where the FWC does not specify a post-declaration negotiating period.

Amendment 58: Schedule 1, item 551, page 177 (lines 26 to 28)

249. Existing section 271A deals with limitations relating to greenfields agreements and workplace determinations. Item 551 would make technical amendments to existing section 271A to replace the reference to "bargaining related workplace determinations" with a reference to "intractable bargaining workplace determinations". Amendment 58 would omit and substitute a new item 551 that would repeal section 271A. Section 271A would no longer be necessary as new section 234 provides that an application for an intractable bargaining declaration cannot be made where the proposed agreement is a greenfields agreement.

Varying ag reements to add employers

Amendment 66: Schedule 1, page 188 (after line 29), after item 596

Amendment 69: Schedule 1, item 597, page 191 (after line 3), at the end of section 216AB

Amendment 74: Schedule 1, item 597, page 194 (after line 29), at the end of section 216BA

250. Existing section 211 sets out when the FWC must approve a variation of an enterprise agreement. Amendment 66 would insert a new item 596A inserting a new subsection 211(1A) that would provide that the FWC must not approve the variation if the varied agreement will cover employees whose employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.

251. New section 216AB would establish when the FWC must approve a variation of a supported bargaining agreement to add a new employer and employees with consent. Amendment 69 would add a new subsection 216AB(3) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.

252. New section 216BA would set out when the FWC must vary a supported bargaining agreement to add an employer on application of an employee organisation that is covered by the supported bargaining agreement. Amendment 74 would add a new subsection 216BA(4) that would provide that the FWC must not make the variation if the employer that will be covered by the agreement is specified in a single interest employer authorisation in relation to any of the affected employees.

253. These amendments would prevent the FWC from approving a variation where the varied agreement would cover employees whose employer is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees. Likewise, the amendments would prevent the FWC from approving a variation of a supported bargaining agreement to add a new employer and employees where the varied agreement would cover an employer specified in a single interest employer authorisation in relation to any of the affected employees.

Amendment 88: Schedule 1, item 629, page 205 (after line 22), at the end of section 216DC

254. New section 216DC, inserted by item 629 of the Bill would set out the matters of which the FWC must be satisfied before approving a variation of a single interest employer agreement to extend coverage to a new employer and its affected employees. Amendment 87 would add a new subsection 216DC(5) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation in relation to any of the affected employees.

255. The amendment would prevent the FWC from approving a variation of a single interest employer agreement where the varied agreement would cover an employer specified in a supported bargaining authorisation in relation to those employees

Amendment 124: Schedule 1, item 649, page 223 (after line 33), at the end of section 216CB

256. New section 216CB, inserted by item 649 of the Bill, would set out the circumstances in which the FWC must approve a variation of a cooperative workplace agreement to add an employer and their affected employees. Amendment 123 would add a new subsection 216CB(3) that would provide that the FWC must not approve the variation if the employer that will be covered by the agreement is specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to any of the affected employees.

257. The amendment would prevent the FWC from approving a variation of a cooperative workplace agreement where the varied agreement would cover an employer specified in a supported bargaining authorisation, or a single interest employer authorisation, in relation to those employees.

Affected employees

Amendment 147: Schedule 1, item 661, page 241 (line 13)

258. The concept of "affected employees" would be central to a variation of an enterprise agreement under proposed Subdivisions AA, AB and AC of Division 7 of Part 2-4 of the FW Act. For example, it would inform who may make an application (proposed subsections 216A(1), 216(1) and 216C(1)), who may vote to approve the proposed variation (proposed subsections 216A(2) and 216C(2)), when the variation is made (proposed subsections 216A(4), 216BC and 216C(4)) and when the FWC must approve the variation (proposed subsections 216AB(1), 216BA(1) and 216CB(1)).

259. Item 661 would amend section 12 by repealing the definition of "affected employees" and substituting a new definition. Subsection (b) of the proposed new definition would provide that for a variation of an enterprise agreement under Subdivision AA, AB or AC of Division 7 of Part 2-4, affected employees means an employee employed by the employer at the time the variation is made who will be covered by the agreement if the variation is approved (or made) by the FWC. In other words, amendment 5 would modify this definition by inserting the words "by the employer" after "employed". The practical effect is to clarify that the reference to an 'employee employed at the time' is a reference to an 'employee employed by the employer at the time'.

260. The amendment is not required to be made in relation to new paragraph (a) of the definition because it applies to single-enterprise agreements.

261. In relation to new paragraph (c), this is a signpost definition and amendments 83 and 84 make a similar change to new paragraphs 216D(1)(b) and 216DB(1)(b) which sit within new Subdivision AD—Variation of single interest employer agreement to add employer and employees, within Division 7 of Part 2-4 of the FW Act (to be inserted by item 629 of the Bill).

262. The amendment is not required to be made in relation to new paragraph (d) of the definition because this relates to variations to remove an employer and their employees.

Supported bargaining

Amendment 80: Schedule 1, items 615 and 616, page 199 (lines 21 to 24)

263. Items 615 and 616 would make technical amendments to section 245, which deals with variations of low-paid authorisations, by replacing the words 'low-paid' with 'supported bargaining'.

264. Amendment 80 would omit items 615 and 616 and substitute a new item 615, to repeal existing section 245 and substitute a new section dealing with variations of supported bargaining authorisations.

265. New section 245 would provide that the FWC is taken to have varied a supported bargaining authorisation to remove an employer's name when the employer and all of their employees who are specified in the authorisation are covered by an enterprise agreement, or a workplace determination, that is in operation. This amendment is necessary as existing section 245 only requires that the enterprise agreement cover the employer.

266. The practical effect of this amendment would be that the FWC will not be taken to have varied a supported bargaining authorisation to remove an employer's name unless an enterprise agreement, or a workplace determination, that covers the employer and all of their employees who are specified in the authorisation, comes into operation. The amendment would eliminate the possibility of an employer being removed from an authorisation where they make an enterprise agreement with a separate group of employees to those covered by the authorisation or where they make an enterprise agreement with some, but not all, of the employees specified in the authorisation.

Presumptive provisions for firefighters

Amendment 150: Schedule 1, page 243 (after line 15), after item 667

267. Item 667A—This amendment would repeal paragraph 7(9)(a) of the SRC Act and substitute it with a new provision that would outline the circumstances in which employees are taken to have been employed as a firefighter for the purposes of the Act.

268. Item 667B—This amendment would introduce paragraph 7(9)(ba) to clarify that employees covered by paragraph 7(9)(a)(i) of the SRC Act are taken to have been employed as a firefighter during any period in which they were a member of a firefighting service.

This bill will get wages moving. It will streamline the process for single enterprise bargaining to incentivise greater take up by employers and employees. Employers and employees are better off on enterprise agreements, and it's that simple. For businesses and employees unable to access single enterprise bargaining, the bill creates flexible options for multi-employer bargaining.

These changes will update our workplace laws to bring employers and employees together to improve wages, conditions and productivity. Since the introduction of these reforms on 27 October, my department and I have continued to consult closely with businesses and unions. These amendments make sensible changes to the bill to address issues arising during consultation. At the request of business, the following key changes have been made.

First of all, on the primacy of single enterprise agreements: under our amendments, employers who have agreed with an employee organisation to start bargaining for a single enterprise agreement are exempt from the single interest stream. This is in addition to the existing exemption for employers with an in-term agreement. In a further change, the Fair Work Commission will have the capacity for up to six months, after the expiry of an agreement, to exempt an employer from the single interest stream where the employer has a history of effective bargaining. These changes will allow businesses who successfully bargain at the enterprise level to continue to do so and act as a strong incentive for new single enterprise agreements to be made.

Further changes with respect to voting: to address concerns that were raised in consultation, primarily with business, we'll amend the bill to clarify that all voting processes under the new single interest and supported bargaining streams will occur on an employer-by-employer basis. This means that an employer cannot be brought to the table to bargain or be covered by a multi-employer agreement unless either a majority of its own workforce or the employer itself supports this. It means that industrial action, where it is permitted, cannot occur where the workers for that employer have not voted for it. Current rules for employers with existing single interest agreements or who have applied for a declaration or an authorisation prior to the commencement of provisions will be preserved.

Under our amendments, we will require a minimum period of good-faith bargaining before an intractable bargaining declaration can be issued by the Fair Work Commission. We'll replace the record of noncompliance exclusion from multi-employer bargaining with an exclusion of the commercial building and construction industry as a whole. This step is not taken lightly, but we do not believe that it is appropriate or necessary to extend multi-employer bargaining to this industry at this time.

Our amendments establish the new National Construction Industry Forum as a statutory advisory body aimed at bringing unions, employers and government to the same table to promote positive cultural change in the sector. I want to thank the Business Council of Australia, COSBOA, the Australian Chamber of Commerce and Industry, the Australian Industry Group, the Minerals Council of Australia, the Australian Constructors Association, the Franchise Council of Australia, Live Performance Australia, the Australasian Convenience and Petroleum Marketers Association, the Australian Retailers Association and other business representatives for raising these issues with me on behalf of their members. I also want to thank and acknowledge the members for Wentworth, Warringah, Curtin, Goldstein, Indi, Fowler, Kooyong, North Sydney, Mackellar, Clark, Mayo and Kennedy for bringing the concerns of businesses in their electorates so passionately and constructively to this process.

We'll make amendments to strengthen the bill by providing that a multi-employer agreement must not be put to a vote unless it is agreed by all relevant employers and employee organisations: retaining safeguards for employees who are young, culturally or linguistically diverse or unrepresented during bargaining; clarifying that new employees hired after an agreement is approved can ask to have the better off overall test applied to them in certain circumstances. I want to thank the member for Melbourne, on behalf of the Australian Greens, and the work of Professor Stewart for the way in which this issue has been raised with us.

Regarding 'further improving access to the presumptive provisions for all firefighters covered by the Safety Rehabilitation and Compensation Act and clarifying access for volunteer firefighters', I thank and acknowledge Senator David Pocock, the member for Bean, the member for Canberra, the Minister for Finance, the member for Fenner, the United Firefighters Union, Mr Brett McNamara and, again, the Australian Greens for their ongoing advocacy and discussion on this issue. This remains unfinished business and we'll continue to consider improvements in this space.

Regarding 'clarify and improve the fixed term contract provisions and insert a new commencement date of 12 months to provide additional time for consultation and further refinement of these provisions, including for sports people and university staff', I thank ACCI, COSBOA, the member for Melbourne on behalf of the Greens and Senator Barbara Pocock for bringing these matters to our attention.

Regarding 'remove the capacity for ministerial directions to the general manager of the Fair Work Commission about the Fair Work Registered Organisations Act 2009, removing any capacity for interference with this function; preserve the concurrent operation of state and territory laws dealing with sexual harassment and ensure that the Commonwealth can be held vicariously liable for contraventions of the new prohibition on sexual harassment by Defence members and provide that certain Fair Work Commission orders under the new section 65C in relation to requests for flexible work cannot be inconsistent with the Fair Work Act 2009 or a term of a fair work instrument other than another Fair Work Commission order of the same kind' I thank the member for Melbourne for raising this issue. I commend— (Time expired)

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

The opposition will be opposing these amendments. It's quite an extraordinary feat, but they make a bad bill even worse. Let's be clear what's happening here. The process here has been absolutely appalling. A 243-page bill containing extensive, detailed provisions was released the week before last. Yesterday afternoon the government released 34 pages of additional amendments—around 150 amendments. This is a hopeless and chaotic process.

Let's be absolutely clear about one of the specific provisions in the amendments the government has released because their union paymasters have been onto the Leader of the House and said: 'Sorry, that's not enough. We need more.' Specifically, there are provisions in these amendments which give unions the power to veto deals that have been done—enterprise agreements that have been done—when a so-called 'bargaining representative', that's to say a union official, declines to give consent to an agreement that has been reached between an employer and the majority of its employees. That is, of itself enough, for the opposition to be trenchantly opposed to this amendment, as we are trenchantly opposed to the totality of the bill that is before the House.

We've had the Leader of the House seeking to give the impression that there's been consultation. He's put on his most reasonable voice, which should put everybody on notice. Let's be absolutely clear about what has been said by industry peak bodies:

The Australian Chamber of Commerce and Industry; Australian Industry Group; Business Council of Australia; Minerals Council of Australia; the Council of Small Business Organisations of Australia (COSBOA); and National Farmers Federation are united in a call for the Government to either abandon or substantially amend various contentious elements of the Bill relating to bargaining.

The Bill, as currently framed, should not be passed by Parliament.

We jointly call on the Government to permit time for a thorough consideration of the content and implications of the Bill. This deeper consideration should include removing the provisions to allow widespread use of multi-employer bargaining backed by strike action. The Australian Parliament should remain open to making further amendments.

And here's another very interesting observation made by these organisations which flies entirely in the face of the honeyed words of the Leader of the House, seeking to give the impression that there's been consultation, that all is in agreement. These organisations say that the legislation as drafted does not reflect broad consensus arising out of engagement with industry at the Jobs and Skills Summit or subsequent consultations. These are bodies representing the major prosperity-generating sectors of the Australian economy, the major employment-generating sectors of the Australian economy. They are saying very clearly that more time is needed, and they are fundamentally opposed, as is clear, to a number of elements of this bill. They particularly highlight the provisions in the bill that would allow widespread use of multi-employer bargaining by strike action.

Let's be clear what is before the House, both in the substantive bill and in the amendments that were circulated yesterday. It is putting Australia at risk of returning to the bad old days of the 1970s, with repeated strike action and a sluggish and unproductive economy. The bill and the amendments make it worse, because they further weaken the arrangements in relation to enterprise agreements because they allow a union to veto such an agreement, even when there has been a vote in favour of it by employees.

There are some minor window-dressing concessions in here, but the simple fact is that this is a very bad bill, taking the Australian economy and our society and our community backwards—extraordinarily. You would have thought it was hard to achieve but, extraordinarily, the amendments make a bad situation worse, and the opposition will be opposing the government's amendments as we opposed the bill.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I am rising today just to make the comment that I concur with the opposition that to be given 33 pages of amendments to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 and to then have 24 hours to reasonably consult with others across the community on it is really not befitting the status of this House as a place where we are able to engage in active debate around the legislation that is put forward. So, while I do commend the government, because I know they've been working very hard to try to engage more broadly, I would like to make the point that the time line on which this bill is being moved through is at the government's behest. As such, the creation of this anxiety is a result of the government's decision to push it through so quickly. So I just mirror, echo, those concerns: 33 pages of amendments to a bill that was already 200-odd pages long is very difficult for people in the real world and in my community to get their head around. Thank you.

Milton Dick (Speaker) Share this | Link to this | Hansard source

Is the member for North Sydney moving any amendments?

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

I am. I move amendments (1) and (2) to government amendment (129) together:

(1)   Amendment (129), item 659B, at the end of paragraph 789GZE(2)(b), add ", and one member with experience in small to medium sized enterprises in the residential building sector".

[membership]

(2)   Amendment (129), item 659B, at the end of section 789GZJ, add:

  (3)   Within 14 working days of a meeting, the National Construction Industry Forum must publish on the Department’s website a public communique.

[confidentiality]

The amendments I'm moving today relate to strengthening the representation on and transparency over the proposed National Construction Industry Forum. Close to five per cent of the workers in North Sydney work in building and construction. That's about 4,000 people. I've spoken to many of them and many residential builders who are fearful that the abolition of the ABCC will drive negative cultural changes in the commercial building sector. Whilst the government claims that carving out the construction industries and its unions divisions from many aspects of the bill will isolate these changes, it is inevitable that what happens at the big end of construction will flow through to the small and medium residential building sector due to the high levels of overlap with subcontractors and workers.

During the course of this rushed debate and harried negotiations we've seen the government release more details around their National Construction Industry Forum. The forum is by no means a replacement for the ABCC, but I am hopeful that all parties to the forum will work together in a respectful, trustful and collaborative manner. As currently constituted, the forum is dominated by ministerial captain's picks from peak bodies and industry groups. My amendments will ensure that those at the table are representative of the whole building industry, not just the big unions or big construction companies. In North Sydney there are around 2,000 construction and building businesses, of which 88 per cent are small businesses. This amendment seeks to ensure that their voice is heard. In order to achieve cultural change throughout the industry from top to bottom, small to medium, residential builders must be at the table. The amendment also ensures that the forum publishes a communique on the departmental website within 14 days of a meeting.

We've seen here and in the media intense lobbying from the big end of town—those with the power and resources to access the halls of parliament—and in this I count large employer groups and businesses, but also representatives of large unions. Individual employees, small- to medium-sized businesses and workers in low-paid industries, who the government have been wielding in advance to advance their arguments, are largely absent. The fact remains that this is a deal being done largely behind closed doors, and I don't think it's good for our democracy. We must open up the doors and improve the transparency over all processes of government, including statutory bodies like the proposed National Construction Industry Forum. My amendment will ensure that the broader sector and the public can see discussions and decisions of the forum, and I commend the amendment to the House.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I want to thank the crossbench for the way in which they have engaged, and I particularly thank the member for North Sydney for this particular amendment.

The government will support the amendment. I was listening to the member for North Sydney and, while decisions have not yet been made—we haven't even started to make decisions in terms of the make-up of the forum—I was thinking back over the years about different fora of this nature which I've participated in in different portfolios, and there was always a risk that exactly what the member for North Sydney described could have happened in terms of the biggest players and groups ultimately dominating it and so we wouldn't get that guaranteed representation, particularly by the small to medium residential sector. I think this amendment provides an important brake to make sure that what we're hoping for happens: bringing all the parties together in different ways and doing that effectively.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendment moved by the member for North Sydney.

Question agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question now is that the government amendment, as amended, be agreed to. I give the call to the honourable member for Wentworth.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I move an amendment to government amendment (30):

Amendment (30), item 506B, at the end of subsection 180A(2), add ", or must ensure bargaining representatives have a reasonable opportunity to communicate and reasons for not providing written agreement to employees".

The most concerning part about the government amendments is the provision giving unions veto power over enterprise agreements. This means that an unscrupulous individual can hold a business and its workforce to ransom, demanding concessions or private benefits that may not be in the interests of union members or other employees. The minister has argued that bad actors may seek to encourage workers to agree to something that is not in their interests. I accept that there are those bad actors. However, this veto power goes too far. It is unconscionable that any government would seek to provide a veto power of this nature, particularly to its financial backers.

My amendment negates the veto power by saying that employers must have written agreement from the union or provide reasonable opportunities for unions to communicate their concerns to employees. I believe that the employees should be well informed about any change to any agreement that comes to them, and I support that the union can provide an important perspective on that. However, it is fundamentally up to individuals to decide whether or not they get to vote on an agreement and whether an agreement is in their interests. If a union thinks it's a dud then let them say so, but let employees decide for themselves what is best for them.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Wentworth; we've had private conversations on this issue as well and I respect the passion with which this issue is held.

The government won't be supporting this amendment. I think it's worth being mindful that when people talk about a veto on one side of the bargaining table that that same veto is there for the employer. So we have a situation where either the employer or the employee organisation can say, 'This is not yet ready to go to a vote.' I know it's been in the media as though there's only a veto on one side. The veto is also on the employer side. The concept here is you reach agreement before it goes to the vote. We believe that's an important safeguard to avoid a situation where substandard agreements are put out under these provisions.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendment moved by the member for Wentworth.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

I support the amendment moved by the member Wentworth, which is very reasonable and balanced. I refer to the minister's comments about there being an equal veto on both sides. I would put it that actually the agreement is between the employer and the employee. They are the two parties to the agreement. The only veto by a third party would be the intervention of an employee representative or union. It is not the same thing to say that the employer has a right to veto an agreement between the employer and the employees.

This amendment softens the requirements, so the employer can show that a bargaining representative has had a reasonable opportunity to communicate reasons for not providing written agreements to the employees, which seems like a very reasonable compromise because it is reasonably foreseeable that the interests of an employee representative, such as a union, could differ from the interests of an employee of an organisation. This requirement doesn't apply now, and there have been examples of agreements being put to employees and approved, despite the union not wanting it to go to a vote. Unions have played an important role in protecting workers' rights over the centuries, but it makes no sense to actually turn them into a barrier between employees and employers. I support that amendment.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the member for Wentworth be disagreed to.

The question now is that the government amendments, as amended, be agreed to.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (31) as circulated in my name together:

(1) Clause 2, page 2 (table items 2, 3 and 4), omit the table items.

(2) Clause 2, page 2 (table items 6, 7 and 8), omit the table items.

(3) Clause 2, page 4 (table item 21), omit the table item.

(4) Clause 2, page 4 (table item 24), omit the table item.

(5) Clause 2, page 4 (table item 27), omit the table item.

(6) Clause 2, pages 4 and 5 (table item 28), omit the table item.

(7) Clause 2, page 5 (table item 29), omit the table item.

(8) Clause 2, page 5 (table item 30), omit the table item.

(9) Clause 2, page 5 (table item 34), omit the table item.

(10) Schedule 1, Part 1, page 6 (line 2) to page 32 (line 29), omit the Part.

(11) Schedule 1, Part 3, page 41 (line 1) to page 79 (line 22), omit the Part.

(12) Schedule 1, Part 15, page 162 (lines 1 to 27), omit the Part.

(13) Schedule 1, Part 18, page 173 (line 1) to page 178 (line 18), omit the Part.

(14) Schedule 1, Division 3 of Part 19, page 184 (lines 5 to 16), omit the Division.

(15) Schedule 1, Part 20, page 187 (line 1) to page 200 (line 25), omit the Part.

(16) Schedule 1, Part 21, page 201 (line 1) to page 213 (line 19), omit the Part.

(17) Schedule 1, item 629, page 204 (lines 29 and 30), omit "is not a small business employer", substitute "employs more than 200 employees who are full-time equivalent employees".

(18) Schedule 1, item 634, page 208 (lines 9 and 10), omit subparagraph 249(3)(a)(i), substitute:

(i) each employer has consented to the application; and

(19) Schedule 1, item 634, page 208 (line 23), omit "is not contrary to the public interest", substitute "is in the public interest".

(20) Schedule 1, item 634, page 208 (line 25) to page 209 (line 3), omit subsection 249(3A).

(21) Schedule 1, item 634, page 208 (line 27), omit "is not a small business employer", substitute "employs more than 200 employees who are full-time equivalent employees".

(22) Schedule 1, item 634, page 209 (lines 12 to 16), omit paragraphs 249(3C)(a) to (c), substitute:

(a) the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

(b) the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

(c) whether the relevant employers are governed by a common regulatory regime;

(d) whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

(e) the extent to which the relevant employers operate collaboratively rather than competitively.

(23) Schedule 1, item 639, page 211 (line 32), omit "is not a small business employer", substitute "employs more than 200 employees who are full-time equivalent employees".

(24) Schedule 1, Part 22, page 214 (line 1) to page 217 (line 8), omit the Part.

(25) Schedule 1, Part 23, page 218 (line 1) to page 225 (line 30), omit the Part.

(26) Schedule 1, item 660, page 229 (line 19) to page 230 (line 7), omit Division 2.

(27) Schedule 1, item 660, page 235 (line 17) to page 236 (line 5), omit Division 14.

(28) Schedule 1, item 660, page 236 (lines 23 to 31), omit subclauses 72(4) and (5).

(29) Schedule 1, item 660, page 237 (line 9) to page 239 (line 26), omit Divisions 16 and 17.

(30) Schedule 1, item 660, page 240 (after line 24), at the end of Part 13, add:

Division 20 — Review of operation of amendments

85 Review of operation of amendments

(1) The Minister must cause a review of the operation of the amendments made by Schedule 1 to the amending Act to be conducted by an independent expert as soon as practicable after the end of the period of 12 months starting on the day the amending Act receives the Royal Assent.

(2) The person who conducts the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister

(31) Schedule 1, Division 2 of Part 26, page 241 (line 1) to page 242 (line 19), omit the Division.

These amendments relate to the very extensive sections of this bill that are, in the view of the opposition, entirely objectionable. The Registered Organisations Commission would be abolished by this bill. We are opposed to the abolition of the Registered Organisations Commission because it would effectively shield the government's union paymasters from the scrutiny that they ought to be subject to, as any other organisation in our community ought to be subject to. Registered organisations are afforded special privileges in the industrial relations system. They control assets worth millions of dollars and have a large amount of trust placed in them by their members. The Registered Organisations Commission, together with the Australian Building and Construction Commission, was critical in guarding against union misconduct—

Hon. Members:

Honourable members interjecting—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The Manager of Opposition Business will resume his seat. The House will come to order. If members are engaging in conversations, can they cease or leave the House? The manager will be heard in silence, and I give him the call.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

Thank you, Mr Speaker. The Registered Organisations Commission together with the Australian Building and Construction Commission did an effective job in guarding against union misconduct and lawlessness in the construction industry. Amendments (1), (9) and (25) of those that I've moved would remove provisions in the bill which go to the abolition of the Registered Organisations Commission.

The opposition is also completely opposed to the abolition of the Australian Building and Construction Commission. We oppose this abolition because, effectively, it hands over control of the construction industry to the notoriously militant CFMMEU. The name of that union is a byword for bullying, intimidation, lawlessness, criminal conduct and thuggishness in the construction sector. When Labor last abolished the Australian Building and Construction Commission—they have form in this—two-thirds of working days lost to industrial action were in the construction industry. The abolition at that time caused the rate of disputes in the construction sector to increase by 46 per cent at a time when disputes in other sectors declined by 31 per cent. It is not okay, for example, for women in the construction industry to be targeted with sexist slurs and physical threats and that, sadly, is what we have consistently seen with the CFMMEU, and the Australian Building and Construction Commission has been an effective means of protecting against some of the worst of those excesses. Amendments (2) and (10) of those I've circulated would remove the provisions in the bill which abolish the Australian Building and Construction Commission.

The opposition is trenchantly opposed to the multi-employer bargaining provisions contained in this bill. They amount to Labor's intent to kill off enterprise bargaining and to replace it with a new centralised wage-fixing system and umpire. Amendments (3) to (8), (11) to (15), (23) to (24), (26) to (28) and (30) would remove all of the provisions in the bill relating to changes in multi-employer bargaining. We are opposed to the bill's expansion of the single interest stream that would allow the Fair Work Commission to authorise workers with common interests to bargain together. Business groups are united in their condemnation of the common interest provision being so broad as to be simply ridiculous. The mere fact of two businesses physically being located together would satisfy the very wide definition of 'common interest.' The ACCI, the Australian Chamber of Commerce and Industry, said that this test exposes the Australian economy to sectorwide strike action, disrupting supply chains and key industries at a time of extraordinary global volatility. Amendments (16), (20) and (22) would implement this change.

We're opposed to the compulsion in the legislation of the single interest employer authorisation provisions. Amendments (17) and (19) give effect to our opposition to the government's compulsion provisions. We oppose the way the bill has dealt with the question of public interest; amendment (18) gives effect to our position there. 'Common interest' needs a clear definition; amendment (21) gives effect to that. Amendment (29) would provide for the minister to be required to conduct a review of the operation of the amended provisions of the act after they have operated for 12 months.

This is a truly dreadful bill which will take Australia back to the grim, dark days of the 1970s, with pattern bargaining, repeated strikes and a sluggish and unproductive economy. That is what we face, and our amendments seek to deal with the most egregious elements of this bill. (Time expired)

Milton Dick (Speaker) Share this | Link to this | Hansard source

Before I call the Leader of the House, there is still far too much noise in the House. I give the call to the Leader of the House.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Before I make my remarks, I need to ask a quick question of the mover, simply because I'm not sure if the version that's been circulated is the same as the one's that has been moved. It might have just been speaking notes or a late change, but the reference that was given to what's here as section 30 on the review was described in the speech as section 29. I don't know if that means the version that's circulated is different or if I've got the wrong one. I don't want to—

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I can tell you that, when a small business—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Paul, you don't have the call.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

is visited by the thugs of the CFMMEU carrying baseball bats, they're not going—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! You don't have the call. Resume your seat.

Honourable members interjecting—

Order! Members on my right! The minister for skills! I didn't hear what the Manager of Opposition Business was saying. There was a question raised. I'll give the call to the Leader of the House. I'm not sure if clarification has been sought—

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

No, it hasn't.

Milton Dick (Speaker) Share this | Link to this | Hansard source

but I'll give him the call, and he may continue with his speech.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

For the benefit of the House, the description that was given of what section 29 says was wrong, and the description of what section 21 says is wrong. I don't know if that means he's moving something different, or whether what's been circulated is right and he gave the wrong speech. I think we can work on the basis that this amendment is not ready. I think we can also work on the basis that—

Honourable members interjecting—

I'm sure there are going to be more contributions, particularly from the crossbench—and this debate will continue into the Senate—on how you reasonably define a 'small business', and there is a reasonable conversation to be had there. But this amendment says small business exemptions should be given to anyone with up to 200 employees. 'Up to 200 employees' should be the definition of a small business! They've also attempted to take out altogether the low-paid-stream access to bargaining. So everything that's been said about feminised industries, about child care, about aged care, about getting wages moving in these sectors—they're taking all of that out. They also want to define a small business as 200 employees. On top of that, they're not quite sure what they're moving. We'll be opposing this.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the Manager of Opposition Business—these are opposition amendments (1) to (31)—be disagreed to.

Andrew Wilkie (Clark, Independent) Share this | Link to this | Hansard source

I move amendments (1) to (8) as circulated in my name together:

(1) Schedule 1, item 426, page 113 (lines 12 and 13), omit the definition of intersex status.

(2) Schedule 1, item 426, page 113 (before line 14), before the definition of special measure to achieve equality, insert:

sex characteristics means a person's physical features and development relating to sex, and includes:

(a) the person's genitalia and other sexual and reproductive parts of the person's anatomy; and

(b) the person's chromosomes and genes; and

(c) the person's hormones and secondary physical features emerging as a result of puberty.

(3) Schedule 1, item 427, page 113 (line 17), omit "intersex status,", substitute "sex characteristics,".

(4) Schedule 1, item 429, page 114 (line 3), omit "intersex status,", substitute "sex characteristics,".

(5) Schedule 1, item 432, page 115 (line 3), omit "intersex status,", substitute "sex characteristics,".

(6) Schedule 1, item 433, page 115 (line 6), omit "intersex status,", substitute "sex characteristics,".

(7) Schedule 1, item 436, page 115 (line 23), omit "intersex status,", substitute "sex characteristics,".

(8) Schedule 1, item 437, page 116 (line 23), omit "intersex status", substitute "sex characteristics".

These amendments quite simply replace the words 'intersex status' with 'sex characteristics' in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. They have been drafted in consultation with the peak organisation representing intersex people, that's the Intersex Human Rights Australia organisation, and LGBTQI+ advocates Rodney Croome AM and Alistair Lawrie. The terminology is also endorsed by the intersex community through the Darlington Statement and the 'Yogyakarta Principles plus 10.' This is a very important amendment because not everyone who has variations of their sex characteristics may identify as intersex. But they still deserve protection from discrimination, not least because the experiences of people with variations of sex characteristics can be harrowing.

Indeed, according to Intersex Human Rights Australia, a 2015 Australian survey of 272 people born with atypical sex characteristics found many individual and systemic examples of discrimination. For example: '19 per cent of people born with atypical sex characteristics fail to complete secondary school, due to reasons including the impact of medical interventions during puberty, stigmatisation and bullying on grounds of sex characteristics and unaddressed issues associated with developmental delays.'

Good discrimination law focuses on people's attributes rather than just lumping people into one group. For example, our antidiscrimination laws protect people of all sexual orientations not just people who identify as gay. In the same way, this amendment would protect all people with variations of their sex characteristics not just people who identify as intersex. Very relevant is that other Australian jurisdictions already recognise this matter and have acted on it, with Victoria, the ACT and Tasmania now using the term 'sex characteristics'. The Northern Territory has also adopted the wording in its Anti-Discrimination Amendment Bill 2022 currently before the Northern Territory parliament. Furthermore, the Law Reform Commission of Western Australia and Queensland Human Rights Commission have recommended 'sex characteristics' as the preferred term.

I acknowledge that supporting this amendment could be regarded as problematic by the government because the federal Sex Discrimination Act has included the term 'intersex status' since 2013. I also acknowledge that during debate on a Greens' amendment to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, that would have replaced the words 'intersex status' with 'sex characteristics', Labor indicated it would not support the amendment because it would cause inconsistency with other legislation such as the Sex Discrimination Act. But two wrongs don't make a right. So the government should either support this amendment and then move quickly to also amend the Sex Discrimination Act and any other relevant antidiscrimination legislation or, at least, make a rock-solid commitment today to soon amend both the secure jobs, better pay bill and the Sex Discrimination Act and any other relevant antidiscrimination legislation.

The substance of this straightforward amendment is inherently important and very meaningful to many people. It's been advocated for many years, certainly as far back as the creation of the Sex Discrimination Act in 2013. So, please, I say to the government: let's do this and do it today.

Stephen Bates (Brisbane, Australian Greens) Share this | Link to this | Hansard source

I'd like to speak specifically to this bill's inclusion of protection from discrimination on the basis of gender identity in the Fair Work Act. I'd like to commend the government for taking these critical steps to protect groups who experience severe levels of workplace discrimination, and I want to thank the member for Clark for moving this amendment to ensure that best-practice language for the intersex community is used in this bill, as the Greens have recommended for years.

Studies have shown that only 22 per cent of gender diverse people feel comfortable to be open about their gender identity with their colleagues. Just over 43 per cent reported being deliberately misgendered within the workplace in the last year, and this bill would go some of the way to ensuring gender diverse people feel safer in the workplace, allowing them to feel more comfortable and secure in themselves.

Protection on the basis of gender identity is a welcomed commitment from the government. Although I welcome their intention in taking steps to protect the intersex community, protection on the basis of intersex status does not go far enough. For intersex people to be fully protected from discrimination, we must protect them against discrimination on the basis of sex characteristics. This is best-practice language and it protects intersex people at all stages of development and widens the scope of protection for intersex people. It's language that Intersex Human Rights Australia has called on the government to implement. Further, it's language recommend by the Queensland Human Rights Commission and the Law Reform Commission of Western Australia to best protect intersex people.

All members of the LGBTQIA+ community deserve to feel safe and protected in their workplaces, including gender diverse and intersex people. I call on the government to update all antidiscrimination legislation to adequately protect intersex people.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

BURKE (—) (): My response to this amendment is probably quite different to how I've responded to any of the other amendments in that this amendment is actually seeking to do something that I originally requested during the drafting stage of this bill. The explanation that the member for Clark gave of the process and the interaction with the Sex Discrimination Act was a problem that I was presented with, and the reason why we can't support the amendment in this form.

In the first instance, I want to make clear: the government makes no argument of principle in any way against any of the two contributions that were just made by the member for Clark and the member for Brisbane. In the second instance, the intention to get best-practice language here so that people are properly covered is a commitment that is shared by those who've spoken with the government.

Before I knew this amendment was coming—this was during the drafting stages—as soon as I hit this problem of the interaction with the Sex Discrimination Act I raised the issue personally with the Attorney-General, because it was the Attorney-General's Department that had raised it with my department. The intention was made clear to me then, by the Attorney-General, that the government does intend to bring in legislation that will deal with this issue across all relevant legislation at once. Being able to do that avoids any problems with the different parts of legislation not interacting properly.

It's a strange one in terms of saying that we won't support the amendment but it's on the basis that we accept completely the arguments that have been put, and want to be able to bring forward government legislation that addresses it consistently across all relevant acts.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is the amendments moved by the member for Clark be disagreed to.

Question agreed to, Mrs Archer and Mr Wilkie dissenting.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I move amendments (1) and (2) together:

That the following words be added after the words 90 days:   ."; and

(1)parts 1, 2 and 3 of the bill are added to the inquiry; and

(2)calls on the Government to change the definition of a small business from 15 to 100 employees".

The purpose of this amendment is to amend section 23 of the Fair Work Act with the effect of changing the definition of a small business. Currently, section 23 defines a small business as a business comprising of 15 employees or less. Casuals are not included in this count unless there is a systematic or regular nature to their employment. For most businesses this would mean most, if not all, of their casual the employees would be included in the employee count for the purposes of defining a small business.

My amendment seeks to change the number of employees that define a small business from 15 to 100. The rationale for this change is simple. Businesses with fewer than 100 staff do not have the human resources departments, they do not have the pay roster, they simply do not have capacity to expend resources—financial and human—to negotiate enterprise bargaining agreements that this bill will potentially force upon them. Without this change we are relegating the thousands of mum-and-dad businesses and entrepreneurial enterprises to an immediate future of costly union-led negotiations. These businesses, many of which are still trying to recover from COVID-19, cannot afford the time or the financial resources.

What we're looking at here is staff with a threshold of 15. Now, let me tell you: right across Australia, this is going to capture fruit-and-vegetable stores; this is going to capture independent service stations; this is going to capture independent and small supermarkets, IGAs. This bill is, I think, unwittingly pitting mum-and-dad operators against unions.

Let me tell you what small businesses are doing on their Saturday night. They don't have HR departments. They are doing the payroll themselves on a Saturday night or a Sunday. They simply cannot afford this.

What's going to happen to those businesses that have 15 or 16 staff, or perhaps even up to 20, is they're going to contract their staffing numbers to make sure that they have fewer than 15. That's going to mean job losses for those 15-year-olds and 16-year-olds that are working at the fruit and veg store every Sunday because on Saturday they're playing sport. This bill is really concerning, so I'm trying to remedy it in some way to take small business out of it. This government is setting up small business for a David and Goliath battle, where David is the small business and Goliath is the unions. I'm afraid that in this contest David will not be the victor.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I want to thank the member for Mayo for bringing this issue forward. A number of members of the crossbench here and in the other place have been raising different ways of dealing with the small business exemption. Some have raised it through a shift from headcount to full-time equivalents. Some have raised it as a change in the numbers. I'll be up-front here: the government's preference is to keep it at a headcount of 15, which is where we've got it. I respect that, in the passage of both houses, there'll be different negotiations that'll happen on that. I appreciate that, particularly for a number of the crossbenchers, a shift on this area is an absolutely critical issue, and that's been conveyed to me. I also acknowledge that, for a large number, there are other issues in the bill that they passionately support. But this is something where they need to stand up for their electorates. I simply want to acknowledge that but make clear that the government will be opposing the amendments that seek to change where the small business exemption is, with an understanding that the debate on this will probably continue as it goes through the other place.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting this amendment. We are extremely concerned about the impact on small businesses of this set of radical industrial relations changes. Indeed, in our own set of amendments we proposed for that reason that the threshold be set at 200 full-time equivalent employees. The minister laughed at that; he thought that was funny. We don't think it's funny that small businesses are facing the threat of getting dragged into extensive and onerous negotiation processes so that they are going to have to devote their time—the time of the owner who is also the chief information officer, also the chief financial officer, also the head of human resources, also the general counsel—to all of these functions for which large businesses have a team of specialists, and certainly industrial relations or workplace relations is one of those areas. In small business the entrepreneur who set up that business and is creating employment faces that burden on a daily basis because they have to do all of these other things. Around Australia there are hundreds of thousands if not millions of small businesses that now face the prospect of having to deal with the unions and the Fair Work Commission as compulsory participants in their business.

I absolutely endorse what the member for Mayo has said. The coalition is extremely concerned about the impact of these changes on small businesses. The mindset from those opposite is that every enterprise of any size has unlimited funds, unlimited resources, and all they need to do is get in there with a bit of persuasion from the CFMEU—'We've come around with our baseball bats to make you see reason.' They want to shake down businesses of all kinds. As far as they're concerned, businesses are endlessly profitable. Small businesses are run by proprietors who are working long hours, often working through the weekend, to give their employees opportunities.

There are so many stories of small business proprietors who, when times are tough, make sure that their employees get paid and continue to have a job, while the employer, the small business, might take an increase to their mortgage, might get extra finance to keep the business going. The member for Mallee brought together small businesses from her electorate just yesterday. I talked to a chocolate manufacturer who told me about the great work she's done building a business and how satisfying it is to be able to employ young people in her country town and give them employment opportunities.

Business owners like that around the country are facing significant threat and risk as a consequence of this intrusive legislation which is going to greatly expand the role of unions and bring them uninvited into small businesses around the country. This is a disastrously retrograde step. I absolutely endorse the observations of the member for Mayo about the perverse incentives that this now creates for small businesses to seek to shrink down below a threshold, leading to employment being lost—quite the opposite of the baseless claims that have been made by the government about the consequence of this legislation. So, the opposition will be supporting the amendment proposed by the member for Mayo.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

The crossbenchers here are not plugging as a group for the union movement; nor are we anti union movement. So, you're getting from the crossbenchers a more objective point of view on the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. And it's interesting that I think four of us are moving to exclude small business. Seriously, there's a problem if the vast bulk of the people who are non-committed on these broader issues are taking a position that small business needs to be excluded. I explained to the government: the Liberal Party introduced the GST, and that was just dreadful for small business. I'm not making an attack on the ALP as opposed to the others here on small business, because both are guilty. But let me just give this example. Tim Fischer, former leader of the National Party, went to Julia Creek and said, 'The GST will be good for you all,' and they started screaming: 'It's just more for work small business! We just can't handle any more work!' The lady who owned the hardware store burst out crying, and she's a tough lady. I went around and saw her the next morning. She said: 'The tradies come in. They work till six o'clock at night, so they're coming in and out of our hardware store till six o'clock at night.' She said: 'I race home to get the meals for everyone, and then I do the books for the business. My husband's a builder, so I do his books and the hardware store books, and I'm up till well after midnight. The tradies want to get on the job at six o'clock the next morning, so I have to get up at half past five.' And she said, at the thought of doing another hour or two hours of work: 'I just burst out crying. I just couldn't stop.'

I mean, you don't understand that. You people on that side of the House simply do not understand that. The introduction of that GST did exactly what they are accusing you people of doing here—exactly the same thing. But there really isn't a feeling for small business. Woolworths and Coles are allowed to go into newsagencies, they're allowed to go into butcher shops, they're allowed to go into every single area of the economy and wipe out small business right across the board—15 inquiries into them, all a joke; you just rubber-stamp them. So, we don't want any more hypocrisy. But I strongly support not only my colleague here but all the other colleagues on the crossbench, who are all moving exactly the same sorts of resolutions. Please excuse us all for repetitiveness, but we're not a party, so each one of us does our own thing. But each one of us has come to the conclusion that small business has got to be excluded, and it's not excluded here in this legislation.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is the amendments moved by the honourable member for Mayo, circulated in her name, be disagreed to.

Dai Le (Fowler, Independent) Share this | Link to this | Hansard source

by leave—I move:

(1) Clause 2, page 5 (table item 32), omit "Part 25", substitute "Parts 25 and 25AA".

(2) Schedule 1, page 228 (after line 26), after Part 25, insert:

Part 25AA — Having regard to certain additional matters in performing functions

Fair Work Act 2009

659AA Section 577

Before "The FWC", insert "(1)".

659AB At the end of section 577

Add:

(2) In performing its functions under paragraph 576(2)(b), the FWC must have regard to:

(a) the need for guidelines and other materials to be available in multiple languages; and

(b) the need for community outreach in multiple languages.

659AC After subsection 682(1)

Insert:

(1A) In performing functions under paragraph (1)(a), the Fair Work Ombudsman must have regard to:

(a) the need for guidelines and other materials to be available in multiple languages; and

(b) the need for community outreach in multiple languages.

It's great that we're seeing a debate about the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 here in the House. As a first-term MP, it's great to see that the debate is robust and that it's done in a safe and respectful manner in the 47th Parliament—so far!

Let me be clear: I'm not opposed to wage increases for hardworking Australians. As a matter of fact, many in my electorate of Fowler who work in child care, teaching, nursing and low-paid jobs will benefit tremendously. They need this, as we're facing a cost-of-living crisis. However, any wage increase must be done fairly, equitably and in a way that does not have unintended consequences for lower-socioeconomic communities and for multicultural communities that are built on small, family-run business. In my Fowler electorate, there are currently over 18,000 trading small businesses, with the majority owned and managed by migrants and refugees. In fact, one in three small businesses are run by migrants and refugees, who are the most entrepreneurial of all small business owners and who are most likely to start their own business.

What plans are in place to communicate the IR changes and reforms to the non-English-speaking communities? My amendments seek to ensure that the Fair Work Commission takes into consideration the need to provide guidelines and community outreach programs in other languages, to support our culturally diverse communities in order to run their businesses. Are we going to have to face another situation like the Western Sydney COVID lockdowns, when no-one in Fowler was given access to information in the appropriate language until it was too late?

Let me remind the House again that my electorate of Fowler has one of the lowest median income rates in the country. The median wage of people in my electorate is 20 per cent less than the national average. When it comes to reforms like this one, we have often been ignored, neglected and forgotten. If we are to be a truly inclusive and diverse society, we need to ensure that reforms like this are meaningful to the 52 per cent of my electorate who are born overseas.

I cannot stand by while my diverse and multicultural community is ignored yet again. We must create a pathway that clears confusion and prevents language barriers from misleading people on any political reforms. I don't need to remind the people in this House that small business is the backbone of the Australian economy.

My community was built on the shoulders of migrants and refugees who came to this country seeking better opportunities for themselves and their families. We have more than 130 nationalities, with many of these people running some type of business—from a banh mi bakery to a pho noodle restaurant or a pearl milk tea store. They're hardworking small-business owners. However, as it currently stands, small business is defined as having 15 employees—including casuals—under the Fair Work Act. That means if my local Vietnamese pho restaurant employs 16 people, they could be forced to enter multi-employer bargaining situations when they lack the time, resources and funds to do so.

We should resolve this issue by amending the definition of a 'small business'. Instead of capping the total at 15 people, I would propose that any business that employs less than 20 full-time employees is a small business. But first and foremost, we must address the issue of interpretation, language translation and community outreach within diverse communities. It's true that Australia is one, and it is many. We are a country of many people, many languages and many backgrounds. Acknowledging this is critical to any further discussions on the bill.

I, like many of my crossbench colleagues, have raised that a bill this complex requires more consultation, more time and more collaboration. Once again, while I acknowledge the government wants to keep its election promise to deliver wage increases by the end of the year—there's about six weeks to go—then they should push the most agreeable part of the bill through first and give us the opportunity to consult with our local businesses in respect of the multi-employer bargaining section of the bill. I think that's only fair. We are, after all, a fair, democratic country. Thank you.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Fowler for the amendment. In particular, I thank the member for Fowler for confining the amendment itself to the issues about community languages. I respect, in the speech that was given, there are other issues the member for Fowler's deeply concerned about, including the small-business exemption and how that's defined, but I do appreciate the amendment has been put in a form that allows the government to be able to support it.

At the moment, the Fair Work Ombudsman have about 30 languages where they are doing this. The Fair Work Commission operates more through an interpreter service as to how they deal with community languages at the moment. But as we both know, because our communities are not that different, and I'm pleased the member for Fowler referred to the lockdown period of the pandemic, there was a period where information was not being provided in community languages when it needed to be. So this puts into the Fair Work Act a requirement as to what's expected, and the government's very happy to back that. The government thanks the member for Fowler for bringing it forward.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

The opposition will be pleased to support the amendment moved by the member for Fowler, which is based upon her strong representation of her electorate and her own lived experience. It's an important amendment, and I rather suspect that, had circumstances been different and had the member for Fowler been somebody who'd been parachuted in from the leafy Northern Beaches—from Scotland Island, in fact—this useful contribution might not have been made.

Question agreed to.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

SPENDER () (): by leave—I move amendments (1) to (20) as circulated in my name:

(1) Clause 2, page 4 (table item 21), omit the table item.

(2) Schedule 1, item 463, page 132 (line 16), omit paragraph 65B(4)(a), substitute:

(a) the FWC must deal with the dispute and, in the first instance, must deal with the dispute by conciliation; and

(3) Schedule 1, item 463, page 132 (lines 19 to 22), omit the note, substitute:

Note: See also subsection 595(2) for the FWC's power to deal with disputes.

(4) Schedule 1, Part 15, page 162 (lines 1 to 27), omit the Part.

(5) Schedule 1, item 538, page 173 (after line 9), after the definition of intractable bargaining workplace determination, insert:

intractable dispute: see subsection 234(3).

(6) Schedule 1, item 543, page 174 (line 6), after "agreement", insert "if there is an intractable dispute about the agreement".

(7) Schedule 1, item 543, page 174 (after line 14), at the end of section 234, add:

(3) For the purposes of subsection (1), the regulations must prescribe what constitutes an intractable dispute.

(4) Before the Governor-General makes regulations for the purposes of subsection (3), the Minister must be satisfied that an appropriate level of consultation has been undertaken with relevant employer and employee groups.

(8) Schedule 1, item 543, page 174 (after line 27), after paragraph 235(2)(a), insert:

(aa) before the FWC dealt with the dispute about the agreement under section 240, the position of each bargaining representative for the agreement was fair and reasonable; and

(ab) the bargaining representatives for the agreement have met the good faith bargaining requirements; and

(9) Schedule 1, item 597, page 194 (line 29), at the end of paragraph 216BA(3)(b), add "or that passed its nominal expiry date less than 12 months before the application for the variation under section 216B was made".

(10) Schedule 1, item 629, page 203 (lines 5 to 27), omit section 216DB.

(11) Schedule 1, item 629, page 204 (line 5), omit "or 216DB".

(12) Schedule 1, item 629, page 204 (line 26), omit "section 216DD; and", substitute "section 216DD.".

(13) Schedule 1, item 629, page 204 (line 27) to page 205 (line 2), omit paragraph 216DC(1)(e).

(14) Schedule 1, item 629, page 205 (lines 12 to 15), omit subsection 216DC(3).

(15) Schedule 1, item 629, page 205 (lines 17 to 22), omit subsection 216DC(4), substitute:

(4) Despite subsection (1), the FWC must not approve the variation if the employer is excluded for the purposes of the agreement by an order under section 178C.

(16) Schedule 1, item 629, page 206 (line 26), omit "or 216DB".

(17) Schedule 1, item 634, page 208 (line 27), omit "is not a small business employer", substitute "employs at least 100 full-time equivalent employees".

(18) Schedule 1, item 639, page 211 (line 32), omit "is not a small business employer", substitute "employs at least 100 full-time equivalent employees".

(19) Schedule 1, item 660, page 240 (after line 24), at the end of Part 13, add:

Division 20 — Review of operation of amendments

85 Review of operation of amendments

(1) The Minister must cause a review of the operation of the amendments made by Schedule 1 to the amending Act to be conducted by an independent expert as soon as practicable after the end of the period of 12 months starting on the day the amending Act receives the Royal Assent.

(2) The person who conducts the review must give the Minister a written report of the review no later than the end of the period of 15 months starting on the day the amending Act receives the Royal Assent.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister

(20) Schedule 1, item 661, page 241 (line 20), omit "paragraphs 216D(1)(b) and 216DB(1)(b)", substitute "paragraph 216D(1)(b)".

These amendments seek to make the bill better. I do not seek to undermine the government's stated intentions at all. My amendments will not interfere with wage rises for low-wage workers, affect gender equality, or impose unnecessary barriers to making agreements These are laudable aims and I support them 100 per cent. My amendments, however, will make this bill more workable for businesses, particularly small businesses, who have had an incredibly tough time in recent years. It will make it more workable for workers, who desperately need a pay rise to cope with the rising cost of living.

Many of the concerns of this bill can be undone with one simple amendment: let businesses consent to multi-party bargains in the single interest stream. No business group in the country supports compulsory engagement in multi-party bargaining. No business group in the country supports this, not even COSBOA, which was the first business group to consider the value of multi-party bargaining—never under any circumstances did they say this should this be compulsory for business. When we are heading into tumultuous economic times, it is absolutely reckless to ignore the legitimate concerns of business. It is reckless to ignore the Productivity Commission, who in their report said:

any changes to the [Fair Work] Act to increase the use of multi-employer and industry/sector wide bargaining are likely to have uncertain implications for productivity … and should be undertaken with caution and be subjected to detailed, rigorous and transparent analysis.

Productivity is absolutely vital for wage growth, and we should listen to the Productivity Commission when considering this.

Will a small grocery store be forced into an agreement that suits Coles and Woolworths? We don't know. Will these changes actually increase wages when agreements are made that may stop a business from changing their business model to meet the needs of their time? We just don't know. The truth is, we do not know the full implications of this legislation, and businesses in my electorate don't even realise that they're going to be subject to it. If the government will not take the time to properly consult on this bill, and properly work with business to come up with solutions that will work for business and workers to drive productivity and wage growth, then we need to make this change.

Many have also spoken about the importance of small business in this country, and many people in this House have businesses in their electorates that would say 15 staff does not make you a medium business. These businesses should not be treated as if they were. I'm seeking an amendment that would raise the threshold of businesses to 100 full-time equivalent staff. Businesses below this level don't have HR teams, and they're fundamentally different to big businesses.

I acknowledge that the government has shifted on a grace period for six months, but that is not long enough for business. We should extend that period to 12 months and a more realistic time frame for negotiations to be concluded. I support the government's desire to increase workplace flexibility. However, I believe that we should always move to conciliation before we go to arbitration, and so I seek that we require conciliation before subjecting parties to arbitration and the very significant cost that it entails. In intractable disputes, my amendments would help prevent gaming or other mischief. They simply require the minister to define 'intractable', require the parties to engage in good faith, and require Fair Work Commission to be satisfied that the position of each party is fair and reasonable before arbitration commences.

Finally—and I think this is crucial—my amendments require an independent review of the bill after 12 months. Sally McManus made the point to me the other day that parliament tends to ignore industrial relations once a significant reform has been made, and so we miss the opportunity to refine legislation after commencement. That is a mistake, but one that we can rectify by ensuring a review of these changes is taken in due course.

The government is determined to pass this bill in a month. It is a huge risk. It is a national experiment in changing workplace relations at a time when our economy is fragile. Wage growth is too low and has been too low for too long. I want to see higher wages, but I don't want to see small business closing or unemployment rising, and I really don't want to see a wage-price spiral where higher wages are eaten up by rolling economywide price hikes. That would be the worst possible outcome. The government should do the responsible thing and limit the scope of the experiment. Order. We should not risk that today.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Wentworth both for bringing these issues forward to the House and also for the conversations that we've had, back and forth, leading up to the debate this morning.

First of all, I'll just go through a couple of the issues, if I may. The advice that we've been given is that in the structure of the act the arbitration clauses that are already there do presume conciliation before arbitration, and that has been the practice of the commission. So, in terms of the intention that's being sought with the amendment and the importance of conciliation being provided first, that is something that the government shares. It's been how the Fair Work Act has operated, and it is our expectation that it would continue to do so.

I want to explain the difference in view when it comes to whether, from the employer perspective, it should be opt-in only. It's very much a different policy view, which is appropriately ventilated here. If you start with single enterprise bargaining, the concept there—while it's rarely used—is that bargaining can be initiated by either side of the bargaining table. It can be initiated by the employer or it can be initiated by the workforce. If initiated by the workforce, it's called a majority support determination. They very rarely get up, but sometimes they do. The principle behind it is to say that we're trying to have a bargain of equals. That's what we're trying to have; we're trying to have a sensible conversation between the employer and the employees, and either side of that conversation can initiate it.

That's the same principle that we want to bring to multi-employer bargaining. One of the reasons that I brought forward the government amendment that was carried earlier with the voting provision change was to make sure that we did not end up with a situation where, at any individual workplace, neither the employer nor the workforce had voted in favour of being part of it. We are wanting to keep to that principle that is currently there in single enterprise bargaining. That is, quite simply, that either side of the negotiation can initiate it. To have a situation where it's opt-in only—the cooperative stream is opt-in only; there is one stream that is designed specifically for that purpose—but to not have a mechanism where the workforce can initiate a negotiation, but the employer can, takes away from the concept of what we're trying to get here. The strength of agreements is that they end up being able to deliver both the wage rises and the flexibility or productivity improvements because you've had a negotiation where both sides had a level of power in that conversation. It's for that reason that we want to maintain the majority support determination principle and it being possible for a workforce to say, 'We want to be part of this.'

Finally, with respect to the independent review, it gives me a chance to say publicly what I have said privately to the member for Wentworth and to many on the crossbench: I do believe the act should have an independent review, and I'm supportive of there being an independent review. What I don't want to do is have a situation where we adopt an independent review in good faith in this place and then go to the Senate and in Senate negotiations we end up with a different independent review, which would then look like bad faith in terms of what had been discussed here. I am very happy, as a result of it having been raised, to commit the government to the fact that there will be an independent review. The exact timing—whether it's a longer one with a halfway point of reporting, or exactly how it works—is something I would rather do in a single negotiation when it gets to the other place. I suspect the relationships between the crossbench here and the crossbench there mean that we should be able to get to a sensible position.

So the government will be opposing the amendment, for the reasons I explained about the opt-in principle, but I thought it was important just to make clear our view of the conciliation provisions and also the undertaking on an independent review.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendments moved by the member for Wentworth, which are another attempt the deal with some of the egregious failures and fundamental policy problems within this bill.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments moved by the honourable member for Wentworth, circulated in her name, Nos (1) to (20), be disagreed to.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (7), as circulated in my name:

(1) Schedule 1, item 597, page 194 (line 29), at the end of subsection 216BA(3), add:

; or (c) the employer's productivity will be adversely affected by the agreement.

(2) Schedule 1, item 629, page 204 (lines 29 and 30), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".

(3) Schedule 1, item 629, page 205 (line 2), at the end of paragraph 216DC(1)(e), add:

; and (iv) the employer's productivity will not be adversely affected by the agreement.

(4) Schedule 1, item 634, page 208 (line 27), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".

(5) Schedule 1, item 634, page 209 (line 16), at the end of subsection 249(3C), add:

; (d) the economic circumstances of the employers' enterprises;

(e) the relative size and scope of the employers' enterprises;

(f) the extent to which the employers operate collaboratively rather than competitively.

(6) Schedule 1, item 634, page 209 (after line 22), after subsection 249(3D), insert:

Public interest test

(3E) For the purposes of paragraph (3)(f), the FWC may have regard to:

(a) the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining; and

(b) the need to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.

(7) Schedule 1, item 639, page 211 (line 32), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".

These amendments focus on tightening up the legislation to ensure that the impacts on business productivity and competitiveness of businesses—

Hon. Members:

Honourable members interjecting—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The House will come to order. There is far too much noise. Members should leave the chamber quickly and quietly so the member for Warringah can be heard in silence.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

It's very interesting to see the members of government walking out during the consideration in detail stage of very important legislation.

Ho nourable members interjecting—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order!

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

When they were in opposition, they complained about the coalition doing it. But it goes to show that, as soon as it changes, the same behaviour applies.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member for Warringah will return to the amendments.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

The unintended consequences of this legislation could have incredibly negative impacts on small businesses in my electorate, and they are still recovering from the impacts of COVID-19. It is misleading to the Australian public to claim that this will get wages moving, when there are going to be months of delay and negotiation—complex processes—and the winners will be the unions and the lawyers; it will not be the workers. It is disingenuous of the government to claim that this legislation will assist feminised industries, when many small businesses are run by women. They will be the first to suffer when this legislation brings an absolute stalemate to sectors like child care.

In Warringah, there are at least 370 businesses that would be able to engage in or be compelled to engage in multi-employer bargaining under the current definition of a 'small business', having less than 15 employees. The added complexity of being compelled to engage in the multi-employer bargaining process will put fear into many business owners. They are struggling to keep their heads above water, still reeling from the impacts of COVID-19 and increasing inflation.

Productivity impacts are dealt with in amendments (1) to (3). They deal with the potential impacts on the productivity—

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member for Aston will cease interjecting.

Zali Steggall (Warringah, Independent) Share this | Link to this | Hansard source

Amendments (1) to (3) deal with potential impacts on the productivity of businesses being roped into multi-employer bargaining after it has been completed. They haven't even been part of the negotiations, and the bill currently allows an employee representative—the union—to join an employer to a multiparty EBA after the conclusion of the agreement. The Fair Work Commission should consider the potential impact on the productivity of a business as a result of being compelled to sign onto the EBA. This is a straightforward amendment that should not be objected to by the government.

The public interest test is amendment (6). Again, the amendment deals with the potential effects on productivity and competition. The bill as currently drafted requires the Fair Work Commission to be satisfied that it is not contrary to the public interest to do so before making a single-interest authorisation. The problem is that the drafting does not specify what would be contrary to the public interest. There is, therefore, no guarantee that the Fair Work Commission would take into account the benefits to productivity, competition and consumer protection that come from enterprise-level collective bargaining. The proposed amendment would require the Fair Work Commission to take into account the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining and the need to enhance the welfare of Australians through the promotion of competition and fair trading and the provision of consumer protections.

Amendment (5) deals with common interest. In the single-interest stream, the common interest test in the current bill is very loosely defined and could have the effect of lessening competition by obliging smaller competitors to agree to multi-employer agreements with much larger businesses, with the potential for the smaller competitors to simply be priced out of the market. My proposed amendments would oblige the Fair Work Commission to take into account the economic circumstances and the relative sizes and scope of the employers' enterprises, as well as the extent to which the employers operate collaboratively rather than competitively, when determining whether the employers have a common interest.

Of course, we've heard much today of the small business definition. The bill currently exempts businesses with fewer than 15 employees from being forced into single-interest employer bargaining. That figure is ridiculous. Many businesses with up to 50 employees would be unable to compete with large businesses who could afford to absorb the extra cost. They will go to the wall. What the amendment proposes is that it be at 50 full-time equivalent. At the very least, the government is saying it will consider it, and there is dispute on this number.

Everyone in this place goes to their communities saying they support small business, yet here we are with legislation that will make it incredibly difficult for small business owners. I think this is really problematic. It does not have social licence. (Time expired)

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Warringah for the issues that have been raised. Some of them go to issues that were raised in other amendments, so I won't go into that in a lot of detail now, but I've given the reasons in terms of the definition of a 'small business'. The government is not seeking to have amendments on that during this debate today.

There are three issues that were raised by the member for Warringah and I want to go through them and explain why the government will oppose the amendment. First of all, the issue about someone being joined to an existing agreement simply by virtue of a decision of a union is not how it operates. It could only happen with there then being a vote of the workforce. Once again, going to that situation I was describing before, things have to be initiated either by a majority of the workforce or by the employer. Either can make the decision on opting in to the processes here.

In terms of productivity, I have no in-principle objection to what the member has said, but I would say that productivity already has to be considered. Productivity is specifically in the objects of the act. Productivity is also then brought in again when we deal with the objects of the bargaining section of the act. Therefore, in applying the public interest test and in making any decisions here, the Fair Work Commission is expected to be taking account of productivity. There's a reason why we have tried to keep some of these tests general and to fall back on the objects of the different parts of the act, rather than have a new list of extra conditions. The reason is that, 10 years ago or a bit more than that, this House in good faith established a low-paid bargaining stream with a whole lot of extra conditions that came out of this sort of debate. The result, when it came to practical application, was that we ended up with a stream which everybody had accepted should exist and everyone accepted should be a pathway for multi-employer bargaining for people on low wages, but which, effectively, no-one was able to access, to the point where people stopped applying.

So the view on the productivity proposal that's there is not that it shouldn't be taken into account but that the government's view is that it is already taken into account and we don't want to make the same mistakes that were made with the low-paid stream and end up putting so many conditions in place that we end up with a stream that of itself becomes overly complex and unusable. If, out of this, we end up establishing something that the very people we have been talking about are unable to access, then the problem that we're seeking to address won't have been addressed.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendments moved by the member for Warringah. They go to many of the issues in this bill that we have indicated that we're very concerned about, including the definition of 'small business' or the cut-off point at which these intrusive and disruptive provisions can be visited upon a small business. Many of them have no idea this is coming. In terms of mandatory multi-employer bargaining and the other issues that we have raised that we've got very grave concerns about, we sought to address those in our amendments. A number of those issues are also sought to be addressed in the amendments moved by the member for Warringah, and the opposition will be supporting those amendments.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I'd like to speak briefly on the topic of businesses having to opt in to a bargain that has already been agreed to. The minister has rightly outlined that, if workers want to bargain, they should be able to bargain, and I wholeheartedly agree with that. But a business should also be able to bargain. If they're going to be pushed into an agreement and they have not had a chance to bargain, that could be extremely detrimental to their business and extremely detrimental to the workers involved as well, in the long term.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

I rise in support for the member's of Warringah's amendment and to note that, in this House, we now have several proposals for the definition of 'small business'—everything from 200 to 100 to 50. There is a reflected concern, I think, across this House around how this legislation will affect small businesses. I know that I've had these discussions with the minister. I rise simply to have it recorded that, whatever number the government ends up landing on, the concern is broad. I think the concern is multipartisan and that there are concerns among businesses across electorates and across Australia that, potentially, they will be unintentionally drawn in under this legislation.

In Goldstein, an electorate that has something like 17,000 small businesses, from small manufacturers to small cafes and such, those with a 15 headcount who would have casuals, 15-year-olds, working in their cafes, in the hospitality businesses, could potentially be drawn in to mandatory multi-employer bargaining under this legislation. I understand that there's an argument for small businesses of a particular size to be able to bargain collectively. I think the line in the legislation as it stands at a 15 headcount is wrong, and I rise again to just really press home the point to the government that when this legislation go to the Senate this is something that really deserves due consideration. Thank you.

Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

I'd like to associate myself with a similar sentiment to what's been expressed just now by the member for Goldstein. There are many elements of the amendments put forward by the member for Warringah and indeed by the member for Wentworth that I agree with. I have some disagreements on other elements, but the issue around the size of small business is I think a universal concern amongst virtually everyone I have spoken to—or have had the opportunity to speak to, in the very short period of time we've had to consider the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. We need to address the size that is indicated in the legislation around 'small business'. That absolutely needs to be negotiated in order to give me any comfort whatsoever that I can ever support this bill. Thank you.

Andrew Wallace (Fisher, Liberal National Party) Share this | Link to this | Hansard source

It's not very often in this place that I rise to support the honourable member, but I am on this occasion, because I know that the bulk of the small businesses in my electorate and throughout this country have absolutely no idea what is coming their way. But we do. We know what is coming. I am gravely concerned about the impact this is going to have on small businesses. They're already facing significant increases in interest rates and energy prices, and we know all of that. But this is going to drastically impact on the ability of mum-and-dad small businesses to do business. The government can't seriously suggest that cut-off. The cut-off cannot be 15; it just can't be. That headcount is so unrealistic. A small business, say a cafe, will be employing casuals, part-timers and full-timers. Even just a small cafe would be over the threshold and they'd be covered by this legislation, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. They are really going to be suffering from this. Small businesses don't have IR departments. They don't have legal departments. They're not accountants. I'm really very concerned about this, and I know most of my colleagues here are, too.

And I want to stand with the crossbench on these amendments. These are sensible amendments in relation to these threshold issues. I implore the Leader of the House: these guys, our small businesses, are really going to be doing it very, very tough, particularly after Christmas. More than likely we'll end up seeing a couple more interest rate rises. And I know already, from the businesses that are talking to me, about how tough they are finding it. These changes are going to significantly impact upon not just their ability to trade but also their mental health. Already small businesses feel like unpaid tax collectors and that they are doing so many jobs that government used to do. They are under the pump, and that is only going to get worse, and it's going to get significantly worse after Christmas. I implore the Leader of the House to re-examine this issue. It doesn't need to go back to the Senate. You've already made 150 amendments. You could bring another amendment today. We are literally building the plane as it's going down the runway. When I was a builder we used to have a saying and that is: measure twice, cut once. We're changing things—I know this is a complex area of law. We've got to get this right, and we are a long, long way from getting this right.

I would also encourage the Leader of the House—you've heard some really sensible submissions from the crossbench. One thing is very clear and that is that this bill is being rushed through. If you rush this you're going to make mistakes. To fundamentally change the way that we are doing business from an industrial relations perspective—it is too important to rush this, because when you rush things there are always unintended consequences. So my plea to you, the Leader of the House, is just hit pause. Let's consult a bit more broadly on this.

So many industry bodies are up in arms about this. What I'm concerned about are the mum and dad punters, the small businesses—quite frankly, I don't think most of them even know what's coming. They're not glued to the television and the papers like we are. They're too busy trying to make a living. If this bill gets passed then they are going to suffer very, very badly—(Time expired)

Milton Dick (Speaker) Share this | Link to this | Hansard source

Just to benefit the House, just to move forward—I didn't want to interrupt the member for Fisher—when we are dealing with consideration in detail it's not a wideranging debate. I would ask all members, in their remarks, to deal with the amendments as the House is dealing with them.

Aaron Violi (Casey, Liberal Party) Share this | Link to this | Hansard source

In my first speech I stood here and said I was going to be a voice for small business in this House. I want to share a story about my time in small business that's directly related to the number of people that are considered a small business—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! I'm sorry to interrupt the member for Casey, but I gave an announcement to the House that this is not a wideranging debate. There are seven items before the House in amendments. I'll give him some latitude, but I will ask him to address his remarks regarding the specific amendments.

Aaron Violi (Casey, Liberal Party) Share this | Link to this | Hansard source

There are 47,000 people employed in small business in Casey. I worked in small business, at Yarra Valley Snack Foods, and I joined the company when we were at seven employees. Seven years later I left that company when we were at 130 employees. So as a leader in that business I lived through the change of a business. I can guarantee you that at 130 employees we were still very much a small business, because we had a lot of people on the books, but we had a lot of expenses. We didn't have a large HR department. We didn't have the ability to understand 249 pages of legislation. When we were hiring people we made decisions on whether it was worth increasing the size of our business or whether we invested in infrastructure.

We need to allow businesses and small businesses to continue to grow and to employ more people. Getting the number right on this is so crucial, because it has unintended consequences. As the member for Fisher said, 'Measure twice and cut once.' I worked on a job site at university. I made the mistake of measuring once and it was a mistake I never made again!

Sometimes, potentially, you're in this House for a long time and you can forget that the decisions that we make in this House are not ideological decisions. They're ideological discussions, yes, but they have consequences in the real world for real people—for small-business owners, for mothers and fathers who are looking to put food on the table—so it's so important that we take the time to get this legislation right. We're already at 150 amendments.

I was very fortunate to follow in the footsteps of the former member for Casey and former Speaker, the Hon. Tony Smith, who was respected throughout the House. He's a friend and a mentor, but he's also a custodian of meaningful and respectful debate in this place with his words but, most importantly, his actions. I'll finish with a quote from the Hon. Tony Smith from yesterday that relates directly to this amendment, to this debate and to what's happening in rushing this legislation through. He said:

… it is critical to remember that democracy is fundamentally underpinned by disagreement. At its core, democracy is a contest of ideas and ideals—a contest to find—

like the number of small businesses, including mine—

and form the best possible ideas and deliver on them. Integral to this contest is a process of respectful disagreement and debate.

We need to take the time to debate this legislation, send it to a committee and get the numbers right because there are 47,000 people in Casey who will be impacted if we get this wrong. There are also lots of constituents in McEwen who will be impacted if we get this wrong. That's why this debate is important. We need to take our time to get it right and to allow a committee to understand it. Having 150 amendments already shows that there are changes that need to be made during this debate. Every time we make another amendment, it has unintended consequences. When you work in business, you take your time to get important decisions right. This is a crucial decision that we are making in this House. I urge us to take the time to get it right.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I remind all speakers to ensure their remarks are directed to the amendments before the House.

Dan Tehan (Wannon, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to also support this amendment. In talking on supporting this amendment, I'd first like to point out that the government has shown that it has been willing to listen and to make amendments to this bill. As a matter of fact, it's been prepared to do so at such a rate that it is proving to be highly embarrassing for the government. I can't remember a piece of legislation in recent memory where there have been 150 amendments, and we're beginning to count. I'm glad the minister's here because the number of amendments—150—shows that he hasn't done his work, he hasn't done his job. He hasn't consulted, and one of the areas he clearly hasn't consulted on is the number of employees that constitute a small business. As the minister should know, there is a wide variety of regulations and rules around what constitutes a small business.

This legislation will have an enormous impact on small business because it will see unions for the first time be able to walk in the front doors of small businesses. This law makes sure that they have taken the smallest and the narrowest definition possible for small business. As previous speakers have mentioned, this comes at a time when small businesses are facing pressures, the likes of which they haven't seen for decades. They're seeing rising electricity and gas prices. They're seeing rising regulatory burdens being placed upon them. And now they're going to confront this new workforce legislation and multi-employer bargaining, which hasn't been properly defined. Small businesses have no idea what multi-employer bargaining will mean for them and their staff. So I say to the government: this legislation has been embarrassing enough for you. Now is the time for you to go back and, in particular, liaise and discuss with all the relevant employer organisations about what should constitute the definition of a small business, what the size of a small business should be. It's clear that right across this House we're saying, 'You've got it wrong.' Like you have with the other 150 amendments that you've had to make where you've admitted you've got it wrong, you've got this wrong as well. So I say to the minister: enough's enough. Enough errors in this bill. Enough harm. Enough damage. You're already doing enough. Let's not go even further.

When it comes to the size of a small business, you should be looking at the number of regulations or amendments you've put in place—150—and, at a minimum, defining a small business as someone with 150 employees. Here, we're suggesting a lesser number than that but one which would mean that the damage this bill will do to small business will not impact on real small businesses. I say to the minister: enough's enough. It's time to admit that this legislation goes too far. It's time to admit that the damage this will do to small business, especially in the limited definition of 'small business' and the number of employees that a small business has, needs to change.

There are organisations that would happily step you through this. Go and discuss this with COSBOA, who have had a bit of an awakening throughout this process. Go and talk to ACCI, who would also happily step you through what a definition of a small business should be. Understand the impact, the regulatory burden and the uncertainty that you will be placing on small business if you go forward with this. The House is sending you a clear message, Minister: you've got this wrong. You've admitted 150 times already, through making amendments, that you've got it wrong. Let's make it 151 and do the right thing by small business.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In responding to some of the comments that have been made, I've already given the perspective of the government in terms of why, in the House, the government won't be supporting a shift in how small business is defined. I'm conscious, from those opposite, that when I was first here the WorkChoices small business number was 100. Today they've gone to 200; they've doubled it. That said, this debate will certainly continue as it goes through to the other place.

I'm also conscious that we have two more amendments, that will come this morning as well, that deal with similar exclusions, one with respect to small business and one with respect to agriculture. I think it's important the House has time to deal with those. On that basis, I'll take the advice of the previous member, the member for Wannon, where he said that on this particular issue enough is enough, and I'd require that the question be put.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendments moved by the honourable member for Warringah be disagreed to.

Sophie Scamps (Mackellar, Independent) Share this | Link to this | Hansard source

I move amendments (1) to (13), as circulated in my name, together:

(1)      Clause 2, page 2 (table items 6, 7 and 8), omit the table items.

[Australian Building and Construction Commission]

(2)      Schedule 1, Part 3, page 41 (line 1) to page 79 (line 22), omit the Part.

[Australian Building and Construction Commission]

(3)      Schedule 1, item 611, page 197 (lines 15 and 16), omit subparagraph 243(1)(b)(ii), substitute:

  (ii)   the history of bargaining of each of the relevant employers, including whether they have previously bargained together; and

  (iia)   the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together; and

  (iib)   whether the relevant employers are governed by a common regulatory regime; and

  (iic)   whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees; and

  (iid)   the extent to which the relevant employers operate collaboratively rather than competitively; and

[common interests]

(4)      Schedule 1, item 611, page 197 (lines 27 to 35), omit subsection 243(2).

[common interests]

(5)      Schedule 1, item 629, page 204 (lines 16 to 18), omit subparagraph 216DC(1)(b)(i), substitute:

  (i)   the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

  (ia)   the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

  (ib)   whether the relevant employers are governed by a common regulatory regime;

  (ic)   whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

  (id)   the extent to which the relevant employers operate collaboratively rather than competitively;

[common interests]

(6)      Schedule 1, item 629, page 204 (line 19), omit “not contrary to”, substitute “in”.

[public interest]

(7)      Schedule 1, item 629, page 204 (lines 29 and 30), omit “is not a small business employer”, substitute “employs more than 15 full-time equivalent employees”.

[small business]

(8)      Schedule 1, item 629, page 205 (lines 3 to 11), omit subsection 216DC(2).

[common interests]

(9)      Schedule 1, item 634, page 208 (line 23), omit “not contrary to”, substitute “in”.

[public interest]

(10)   Schedule 1, item 634, page 208 (line 27), omit “is not a small business employer”, substitute “employs more than 15 full-time equivalent employees”.

[small business]

(11)   Schedule 1, item 634, page 209 (lines 12 to 16), omit paragraphs (3C)(a) to (c), substitute:

  (a)   the history of bargaining of each of the relevant employers, including whether they have previously bargained together;

  (b)   the interests that the relevant employers have in common, and the extent to which those interests are relevant to whether they should be permitted to bargain together;

  (c)   whether the relevant employers are governed by a common regulatory regime;

  (d)   whether it would be more appropriate for each of the relevant employers to make a separate enterprise agreement with its employees;

  (e)   the extent to which the relevant employers operate collaboratively rather than competitively.

[common interests]

(12)   Schedule 1, item 639, page 211 (line 32), omit “is not a small business employer”, substitute “employs more than 15 full-time equivalent employees”.

[small business]

(13)   Schedule 1, item 649, page 223 (line 29), omit “not contrary to”, substitute “in”.

[public interest]

There has been much talk from the government of the mandate it has been given by the people of Australia to support the introduction and passage of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. I agree wholeheartedly that the people of Australia did give a mandate for wage growth, especially in the long-undervalued and largely feminised care sectors. And I wholeheartedly agree with the need for urgent reforms to ensure that there is equal pay for equal work. However, I too have been given a mandate, by the people of Mackellar, to listen to them and to represent them on issues that matter to them and to make a difference to their lives. This includes a strong mandate to support the small-business owners in Mackellar. Small business is the backbone of the Mackellar electorate, with over 35,000 small businesses located there. The results of our recent survey of businesses showed that 84 per cent identified red tape and compliance as their top issue of concern.

I have also heard loud and clear from those in the construction industry, including my local Master Builders Association, who value the role of the Australian Building and Construction Commission and are alarmed at its abolition. In fact, almost nine per cent—8½ thousand people—working in Mackellar work in the building and construction sector. This includes 3,500 businesses, of which 91 per cent are small businesses. This is comparatively high even compared with similar electorates in my area of Sydney. I also have a mandate from the majority of my electorate to do politics differently, and that is to ensure proper process, consultation and consensus building.

The problem I have with the omnibus nature of the fair work legislation amendment is that many of these excellent policies are bundled up with the more-controversial ones, and this has created a Sophie's choice when it comes to voting. As with many of my crossbench colleagues, I too have serious concerns at the consequences this legislation will have on small business. So I have moved these amendments to protect small businesses and to reduce the risk that they will be impacted unnecessarily. I do this by removing the uncertainty associated with the common-interest test and raising the bar in regard to the public interest test. Importantly, I seek to remove part 3, the abolishment of the ABCC, which has been a political football with each change of government. I also seek to protect small business by updating and clarifying the common-interest test and also flipping the public interest test to be defined as 'in the public interest', not merely 'contrary to the public interest'. Finally, I move to amend the definition of the small business exemption to be based on 15 full-time-equivalent employees, not merely employees under the current definition of small business. Thank you.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Mackellar both for the contribution in the debate and the conversations that have happened back and forth between my office and her own in the lead-up to this debate.

I want to deal in some detail with one of the issues that has been raised. The government won't be supporting the amendment. I've referred a few times now to the 'small business' definition issue and how we're wanting to handle that. And we've had many opportunities for debate where I think I've probably made clear the government's views on the ABCC, but am very mindful of what the member for Mackellar said there about the statistics in terms of the impact on her electorate of the construction industry. I can completely respect why the issue is being raised through this amendment.

I want to deal in some detail with an issue that has come up a lot in the media, but I think this is the first time it's been raised in the House. The issue is whether or not we ought to have detailed criteria for the common interest test. In particular, the issue is often raised—and it's part of the amendment—as to whether we should include a concept that businesses must be operating collaboratively, not competitively, because it's here that there is a policy decision that the government is taking quite deliberately and I want to be able to explain it. There are circumstances where businesses are in competition where we do want multi-employer bargaining to apply, and that is different to how the single interest stream or common interest stream runs at the moment.

I'll give a simple example. When the race to the bottom on wages is, effectively, the nature of the competition, that's not a form of competition that we want to encourage, even though those businesses might be operating competitively. The simplest example I can give would be the example of cleaning companies. It has been the case that a good enterprise agreement is negotiated with a good employer. They get their rates of pay for their workforce improved on the award, and they get some flexibility in return. Then they simply get undercut only on wages—not on quality of service or anything else. As a result, they lose their contract and we end up back where we started. The people who had better wages don't have a job, and the same work is being done with similar equipment in a similar way, and we failed to get wages off the floor of the award.

So in those circumstances, we do want it to be possible for good employers to make sure that, on everything else, competition still happens—in terms of the quality of the service, the quality of the equipment, and the ingenuity of the different businesses and of the different brands and the ways that businesses put themselves out to the public. But there are circumstances where the nature of the competition is a race to the bottom on wages, and that is one of the things we want to directly address.

This amendment would reflect language that's currently in the act, but we're quite deliberately wanting to change that. I thank the member for Mackellar not only for bringing the issue forward but also for giving me the opportunity to provide that further explanation to the House.

Kate Chaney (Curtin, Independent) Share this | Link to this | Hansard source

I rise to speak in support of those amendments. I want to take up a statement that the minister made then about wanting to create a level playing field for businesses that are in competition. My concern is that the flipside could also be true. Sometimes businesses do compete on wages and they are competing for talent by offering better wages. The concern is that the unintended consequence here is that it actually prevents that sort of competition if one competitor can be dragged into a bargain with its competitor and is no longer able to compete by offering better terms and conditions to those employees. That is the sort of unintended consequence that I am concerned about and that my electorate is concerned about that requires greater consideration of the issues and of what might come out of the legislation, as evidenced by the numerous amendments that have been put by the government and other sides that shows that, really, we need to take some time to think about this. I'd just put that to the minister.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

By way of a very quick clarification, there's nothing in the legislation before us or in the amendments before us that would turn agreements into a ceiling on wages. Many businesses out there now, particularly at a time of labour shortage, are paying above agreement or award rates. The capacity to do that is unaffected, whether employees are on an award, on an enterprise agreement or on a multi-employer agreement.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendments moved by the member for Mackellar. I want to focus particularly on the amendments that she has moved that would have the impact of deleting from the bill the provisions currently within the bill that get rid of the Australian Building and Construction Commission.

The problem with getting rid of the Australian Building and Construction Commission is that it effectively gives a green light to the notoriously militant CFMEU. This union is known for its track record of bullying, intimidation and lawlessness. This has been commented on by numerous Federal Court judges. It's very clear that the leadership of the CFMEU regards fines and convictions as simply the cost of doing business. And the evidence is very clear; we've had prior experience of what happens when the ABCC is abolished by a government at the behest of the CFMEU, because Labor's done this before. Labor has got form here.

When Labor last abolished the Australian Building and Construction Commission, two-thirds of working days lost to industrial action were in the construction industry, and the average rate of industrial action was nearly five times the average in every other industry. In turn, this caused the rate of disputes in the construction sector to increase by 46 per cent, compared with a 31 per cent decline across all other industries. The regrettable fact is that, thanks to the extraordinary amount of working days lost due to industrial action at building sites, necessary infrastructure for our communities, like schools and hospitals, cost taxpayers up to 30 per cent more—because of the disgraceful conduct of the CFMEU.

Don't take my word for it; look at the courts. In recent years, what decisions have the courts made as to the conduct of the CFMEU? The CFMEU has been found guilty by the courts of breaching industrial law on projects across Australia: offices, apartments, shopping centres, hospitals, children's hospitals, universities, schools, roads, airports, stadiums, hotels, medical research facilities, social housing and many other important community facilities. The CFMEU doesn't care. They play their games on all of these sites and others. The record of experience is clear: the Australian Building and Construction Commission has been an effective check on the excesses and the militancy of the CFMEU and on the damage that they do across the economy.

The removal of the ABCC is a retrograde step, it's a very bad move and it is something that the coalition opposes. That is a key reason why we're supporting the amendments moved by the member for Mackellar. Of course, we've also seen that the CFMEU has a disgraceful track record of targeting women on construction sites with sexist slurs and physical threats.

The consequence of the provision in the bill that would remove the Australian Building and Construction Commission is that it would essentially leave businesses and workers in the construction sector across Australia completely exposed to the unlawful conduct, the thuggish and violent conduct, of the CFMEU. That was the fundamental policy purpose of the previous coalition government in establishing the Australian Building and Construction Commission. It worked effectively to reduce disputation on construction sites around the country.

There are flow-on consequences across the economy, because construction, as the member for Mackellar has rightly said, is such a significant employer. It employs a large percentage of Australians—many small businesses, many subcontractors. The removal of the ABCC is very, very bad news for the sector and those who work in it. It's very, very bad news for our broader economy, and that is why the opposition itself moved an amendment to remove these provisions. That was unsuccessful. For the same reason, we are certainly pleased to be supporting the amendments moved by the member for Mackellar, because the removal of the ABCC is a very bad step indeed.

Allegra Spender (Wentworth, Independent) Share this | Link to this | Hansard source

I support the amendments of the member for Mackellar. Firstly to the point the minister raised about businesses, that the agreement will not be a ceiling on wages but will be a floor, I take the point that it won't be a ceiling. However, if you are bringing businesses together to talk about wages and getting agreement on wages, it would not be a surprise if businesses, having built those relationships and bargaining around wages, come together and decide what they will do about wages and seek it to be an effective ceiling. I think it would be very hard to understand what is actually going on, because of the nature of these businesses.

The second piece I'd like to rise in support of is in public interest. In the bill currently you can only have a forced multi-employer agreement if it's not contrary to public interest. I support the member for Mackellar's motion to flip that, that a multi-employer bargain—where the business doesn't choose to enter the bargaining; the employees choose to enter the bargaining—has to be shown to be in the public interest. I see that there's real value in that, because there is deep uncertainty out there amongst the business community about who is going to be drawn into multi-employer bargaining and what sort of bargains and groups of businesses might be drawn in. I think if you flip this and make it that it has to be positively in the public interest you would deal with issues that the minister has rightly raised, where there's a concern about a race the bottom on wages. I can see that there would be strong arguments that the race to the bottom on wages is not in the public interest. Therefore, that would give that protection to that group of workers, but would stop the legitimate fear of many businesses who would say, 'I'm going to be dragged into an agreement which is not in the public interest—and is certainly not in my interests—and is going to take a significant amount of time for me to negotiate. And it won't support the growth and development of my business.' So I recommend the member for Mackellar's amendments to the House.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

I rise in support of the amendments put by the member for Mackellar. In particular, I would like to refer to the references to the ABCC. Before I do that, I just want to compliment the member on her fantastic mum joke—Sophie's choice was very well done. We should hear more mum jokes in this place—not just dad jokes.

There are 1.2 million workers, or thereabouts, in the construction sector in Australia, so this is a significant percentage of Australians. One in 10 jobs are in this sector, so we are talking about an enormous percentage of Australians and the economy. When you break that number—of who is employed in the sector—down they are often also small business people. We've heard discussion about small business in other amendments that've been put, and I won't speak to that.

I come from a family that is employed in the construction sector. My father is a roof plumber. If anyone needs their leaky roof fixed he's pretty good! When I meet him on a building site, or talk to tradesmen that have worked for him or others in the sector, something pops out that is quite concerning: there is a different standard of living if you are in a union protected job or if you're not. You notice it in the wages, in the quality of the house that you have and in the sort of work that you get. There are insiders and there are outsiders, and the insiders have your ear; the outsiders don't. They don't get considered.

In another debate that will come to this house, we heard about integrity and the corruption commission. At some stage we will have a report tabled in this house and we'll have an important, momentous occasion in this parliament and in our democracy and the debate will happen. But when we look at the difference between insiders and outsiders, we see that the insiders get a special place where they get special carve-outs. We had the Prime Minister on Monday say that the reason for that is that we do not want the duplication of regimes.

Well, we see in this particular example a regime that is effective and is doing a good job getting cut away. So I rise in support of the amendment. There shouldn't be insiders and outsiders. We will always be listening to all voices, including those in small business who work in the construction sector.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendments be disagreed to. I will just remind the House again: members can confine their remarks specifically to the 13 amendments before the House, which are technical and specific amendments. It is not a wideranging debate.

Phillip Thompson (Herbert, Liberal National Party, Shadow Assistant Minister for Defence) Share this | Link to this | Hansard source

I rise in support of the amendments moved by the member of Mackellar. I'd also like to agree with statements made by the previous contributor, the member for Menzies. I would like to congratulate him on a very relevant contribution to this parliament. I think it was extremely relevant.

Today, we're debating an amendment around the ABCC that is quite close to a lot of people's hearts. We know that the ABCC has improved productivity. In places like Townsville, we saw the construction of our stadium, the Queensland Country Bank Stadium, where the ABCC was involved in calling out extreme, militant behaviour that was conducted by the CFMMEU. These CFMMEU members were not from the region. They were not from Townsville. These union members were flown in—some from interstate and some from the south-east corner. They rocked up and they were bullying people in the construction industry, demanding that they either join the union or get off site. The ABCC stood up for these workers. Many of these workers are small businesses that just want to get on with doing the job.

The ABCC has had many different reports conducted into them. One independent economic report on the state of the sector said that, during the period, multifaceted productivity rose by 16 per cent, consumers were better off by around $7.5 billion annually and there was significant reduction in working days lost through industrial action. This should be supported—having minimal time off and ensuring that the ABCC is there to be the watchdog, the independent umpire and an independent group that can call out bad behaviour

On the project in Townsville where the ABCC called out militant union behaviour, we saw fines given to the CFMMEU for doing the wrong thing—rocking up to the site and bullying people. This isn't a good thing. We've seen assaults. We've seen the way that people have been treated on job sites by the CFMMEU in particular, so having an independent watchdog is a good idea.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

I'm happy to take some interjections, as long as they're not personal like you did last night, mate. I'm more than happy to—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The member for Herbert will direct his remarks through the chair.

Keith Wolahan (Menzies, Liberal Party) Share this | Link to this | Hansard source

Sure, Mr Speaker. What will happen to the construction industry without the ABCC? The construction industry stands apart from other sectors, in terms of its industrial unlawfulness. When there is no watchdog, industrial laws and penalties in this industry are seen as no more serious than a parking ticket. You speed; you pay the fine—and the offending conduct is repeated again and again. We've seen this raised in the courts recently.

The government has a responsibility to ensure that our laws are strong enough to deter people from breaking the law and that there is an effective regulator to prosecute wrongdoers when they act unlawfully. We haven't seen this in the past when we've seen militant unions break the law; they laugh in the face of it and make comments through their social media about it.

As soon as Labor abolished the ABCC in 2012, the improvements in respect for the law were lost almost immediately. After getting rid of the ABCC, the rate of disputes in the construction industry rose to approximately four times the all-industry average. In the first quarter after binning the ABCC in September 2012, the rate of industrial disputes increased fivefold. This is something that would lower productivity, would see more people have time off and would see the CFMEU run roughshod over the construction industry. It is something that we, on this side of the House, do not support.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is the amendments moved by the member for Mackellar, numbers (1) to (13) be disagreed.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I move the amendment as circulated in my name:

(1) Schedule 1, item 660, page 229 (after line 18), after Division 1, insert:

Division 1A — Application generally

55A Amending Act does not apply to farming employment

The amendments of this Act made by Schedule 1 to the amending Act do not apply in relation to farming employment. Farming employment will be under general uniform base wage and conditions.

55B Amending Act does not apply to certain businesses

The amendments of this Act made by Schedule 1 to the amending Act do not apply to businesses that employ under 50 full time equivalent employees in regional, rural and remote Australia.

The last speaker spoke about interference on construction sites. I represent Mount Mulligan where 72 human beings ceased to exist in the space of five seconds. I represent Mount Leyshon. My own son worked at Mount Leyshon where 23 human beings ceased to exist in the space of five seconds. One in 30 of the people who worked in the cane fields died in the cane fields. One in 30 people who worked in the mines died in the mines. So don't take lightly the importance of trade unionism. My family—I make no apologies—is a very rich and powerful family, but they could see clearly, as I think all decent people saw clearly, the necessity for some protection and power for the employee class.

I'm moving for the exclusion of farming here. I'm supporting the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, but, in the area of farming, it's just not like it is everywhere else. To give you some idea, the banana industry employs about 6,000 people. I'm in the pub drinking and I say, 'What do you do, Mick?' He said, 'I work in bananas. ' I said, 'Well, you're not working today.' He said, 'I don't work on Tuesdays.' I said, 'Do you work later in the week?' He said: 'Sometimes I work on Thursdays. If you turn up at 6.30 in the morning at the corner of Eden Street, a bus picks you up and takes you out there. If you're not there, well, you're not there.' This is not the ordinary sort of arrangements—and I think everyone here are from cities—that you consider in a city. I just think it's so enormously different.

If someone gets sick, the harvester can't harvest, so he drives around to an old mate of his who's long since retired and he comes out of retirement for a few days. If we're short in a muster, you just go into the pub and drag someone out. I really don't think the sorts of things we're talking about here apply in the farming situation. In some areas it does apply, but I use the word 'farming' not 'agriculture', because agriculture would include the sugar mills and industrial undertakings in farming, and I don't think they should be excluded from the ambit of this legislation. But farming itself, as opposed to agriculture, has to be excluded. Like so many of my colleagues, once again, I move that it be under 50. I think there's a good argument that it should be under 100, but I think really, Minister, 15 is too low. In the Senate, I think you've got to consider raising that a bit.

I want to give some insight into small business. There was a cafe in Hughenden—I think the owner would be happy for me to use his name. It was Jimmy Marendy's cafe. The union bloke came around and said, 'What hours are you working?' The lady told him her hours. He asked: 'How much are you getting paid?' He said, 'Because your hours don't overlap, you should have got another 50 bucks a week off your employer.' So the owner had to pay them backpay. The owner of the cafe was earning less than the employee, which is pretty common in small business. There are some tax benefits, but really I think a lot of small-business owners are earning less than employees. So he shut the cafe and we had no cafe in Hughenden, and six people had lost their jobs. So this is not a shoe that fits all feet. It's just simply not. I think you've got to exclude to a certain level— (Time expired)

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the member for Kennedy and acknowledge his extraordinary connection to the agricultural and farming communities in his electorate. I've been with him with beef producers and canegrowers, and I've been in those same those banana-packing sheds that he referred to. Some of the greatest areas of underpayment and exploitation and low wages that we have dealt with are not necessarily in that part of Australia but have actually been in the agriculture sector and, often, in horticulture. I would be loathe to create a situation where those workers weren't able to have the chance of the benefits of some of the provisions that are in this bill. For that reason the government won't be supporting the amendment, but understands exactly why it's being moved by the member for Kennedy.

Just in closing—because this will be the final moment of the debate—and for those who are wondering about the consideration in detail stage: this bill will have had the longest consideration in detail on any bill since the marriage equality debate in 2017. You would have to go back to the previous Labor government before that to find a consideration in detail stage on any bill that has gone for as long as this one has. With that in mind, I request that this amendment now be put to the ballot.

Rebekha Sharkie (Mayo, Centre Alliance) Share this | Link to this | Hansard source

I rise to support the member for Kennedy's amendment. I too represent a regional community, and I have to say that running a business in a regional community is very different. There are pressures on regional businesses that are not experienced in metropolitan areas. I'm talking about fires, floods and droughts, and the impacts those have on regional communities. That's why we have the rural business support scheme, a scheme that I support very much.

But I just want to tell the House very quickly about one small business in my electorate of Mayo, in my hometown of Mount Torrens. Many years ago, the centre of town had a really big stone shed; it's where we used to make ice cream, AMSCOL ice cream. That business closed and for many years, right in the heart of town, this huge, great big building was empty. Then we had Elders move in there for a few years and then, again, it was closed—for many, many years. It's not like in metropolitan areas, where one business moves out and another business moves in. This really ended up being an empty shell full of rats and everything else. We then had a business move into the town, Coopers of Mount Torrens, and I have to say that the whole town celebrated. That is a small business that would be very much impacted by this industrial relations legislation that we have before us. I just don't think that the government is really thinking deeply about the impact of this legislation on regional businesses across Australia. I would very much urge the government, perhaps in the Senate, to have a look at regional Australia and our small businesses, to try to provide some protections for them.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I indicate that the opposition will be supporting the amendment moved by the member for Kennedy. As he has rightly highlighted in his contribution, the primary industry sector is enormously important to Australia's prosperity. Indeed, there is a goal of achieving export income of $100 billion. There has been very significant progress towards that over the last few years and the coalition strongly supported that when in government.

Of course, what needs to be recognised—and the members who have contributed have made this point very effectively—is that farming, primary industry, has some characteristics that are very different to other kinds of businesses across the economy. Many farming enterprises are family businesses, being built up over generations, and many farming businesses take substantial risks: if there's a drought, that could go for a year, or two years—or four or five. The harvest could fail, and that can happen, year after year after year. Families in many cases there are really hanging on, and it's very, very tough. It's a boom and bust industry: of course there are other times that are good—global commodity prices are high, the weather is good and the harvest is good, and farmers receive a substantial sum of money for their harvest.

But of course that cyclicality, that boom-and-bust nature, is something that's unlikely to be looked on in any receptive way by aggressive unions seeking to push into territories that they presently do not have a strong presence in. And we know that's one of the agendas behind this bill: it's to expand the role of the union movement to support it to get greater coverage, across many different parts of the economy, and there's no doubt that farming is one of the sectors in their sights. So, this government is of course dancing to the tune of the union paymasters.

Government Member:

A government member interjecting—

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I hear a member opposite, a former union secretary, like so many of them on the other side. These people are not disinterested. These people don't bring an unbiased and objective perspective on this. This is a collection of former union officials, and we've just heard one bellowing out, in the normal way that he does. All those years of standing there on the picket line with the bullhorn: 'What do we want? When do we want it?'—that's what we're seeing, all that training coming into play now. This is a bill that is about supporting the interests of the union bosses. There are farming enterprises—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The Manager of Opposition Business will ensure that his remarks are directly relative to the amendment of the member for Kennedy.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

I do make my remarks directly relevant, as you rightly counselled me, Mr Speaker, to the excellent amendment moved by the member for Kennedy, which goes to the specific and distinctive characteristics of farming enterprises and of enterprises in regional and remote Australia more broadly. His amendment covers both farming enterprises and businesses in regional, rural and remote Australia. Again, we know that businesses in regional, rural and remote Australia have characteristics that make them different to businesses in metropolitan Australia. Supply chains are longer and more uncertain. A flood can knock out supplies for weeks. Power can be less reliable. And there's a requirement in any—

Milton Dick (Speaker) Share this | Link to this | Hansard source

I call the member for Kennedy on a point of order.

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

Yes, I'm being misrepresented here. I'm not opposing the ambit of the bill in rural and rural areas. I'm opposing the bill's ambit for farming.

Milton Dick (Speaker) Share this | Link to this | Hansard source

That's not a point of order. If you claim to be misrepresented—

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

I was misrepresented. He was saying—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Okay. Resume your seat. I will call you when the member has finished his speech.

Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

In the remaining time available to me, I enthusiastically repeat the opposition's support for the excellent amendment of the member for Kennedy. (Time expired)

Milton Dick (Speaker) Share this | Link to this | Hansard source

Does the member for Kennedy wish to take a misrepresentation?

Bob Katter (Kennedy, Katter's Australian Party) Share this | Link to this | Hansard source

No, I just want to make the point that I want the benefits of this bill to flow into rural and regional Australia, but in farming I just don't think we can cope with it.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member has not claimed to be misrepresented.

Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Link to this | Hansard source

I rise to support the farming amendment proposed by the member for Kennedy, and I take on board his comments delineating the exact meaning of his amendment. But as I do so, I do so not only as the representative for Braddon but also as a beef producer and crop grower from the north-west coast of Tasmania. The point I want to make today is that there's an old saying that an old farmer once used, and that is that you shouldn't bite the hand that feeds you. The point I make from that is the fact that here in this place we live in a very different environment, a very sterile—

Government Member:

A government member interjecting—

Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Link to this | Hansard source

You're obviously getting a feed! Thank a farmer. But the point I make—

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member for Braddon will resume his seat. Those remarks are not helpful or indeed part of the debate. I'm going to ask him to withdraw that comment and direct all his comments through the chair, not directly to other members.

Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Link to this | Hansard source

I withdraw. The point I make—and it's a passionate one—is that the farming communities we have right across this nation live in a very different place to those that live and operate in this place. This is a sterile place. This is a place where decisions are made on numbers. However, the risks that are encountered by the farming community are immense.

All across the electorate of Braddon this morning, before four o'clock, farmers got up and milked their cows. One employee would go out on an ATV or a UTV and get the herd of 300 or 400 cows into the dairy, and a crew would come in to milk the cows. There would be a team to wash the teats of those animals, there would be another team to put the teat cups on, there would be another team to take the teat cups off, there would be another person there to apply Redene disinfectant to the animal. Then another person would take that herd back out to the paddock and another employee would get on a tractor with a fertiliser applicator to fertilise the pasture. After that, someone would come along and grab the spray rig and they'd go out to apply spray to that piece of pasture. But the point I make is that each part of that labour chain requires a person, and the total number of these casual employees doing very specific work adds up to an aggregate, which is exactly, I think, where the member for Kennedy is going with his point about the peculiarities of farming.

The corporatisation of farming means that we need a more specialised labour force. It means that we need to have casual labour coming in from time to time, depending on the weather, depending on the season. Again, that's peculiar to farming. We're coming in to harvest time in the state of Tasmania.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The member for Spence is not helping this debate, and I ask him to cease interjecting.

Gavin Pearce (Braddon, Liberal Party, Shadow Assistant Minister for Health, Aged Care and Indigenous Health Services) Share this | Link to this | Hansard source

The point I made prior to the interjection was that we're coming in to harvest time in Tasmania, and so we have another casual labour force that will take over, each, again, doing a very specific job that forms part of a casualised workforce that deals with the peculiarities and the seasonality of a farming operation.

If I summarise the main points: the difference between a general workforce and the farming sector workforce is immense. It's like a different planet, and until we understand the nuances and the peculiar requirements necessary to conduct that agricultural operation then we're not doing them any service at all. Finally, I'd like to say that they've got enough to put up with. The environmental compliance, the animal husbandry compliance, the industrial relations compliance—these are not people that have specialised people in offices or departments to deal with IR legislation. These are mum-and-dad businesses, and when mum or dad is taken away that means that 50 per cent of their business has stopped being effective. Farmers and our farming communities, our agricultural sector right across— (Time expired)

Honourable members interjecting—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Order! The member for Wannon does not have the call and will resume his seat. The member for Wannon is warned. The member for McEwen will cease interjecting.

Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I think the issues have been quite properly raised for debate and to be discussed in the parliament by the member for Kennedy. We've had a good discussion on this and we're at a point now where, once we finish the amendment debate, we will go immediately through to the final stages of the bill. The parliament now has a chance to get wages moving. I think we should proceed with that now and I ask that the amendment now be put to the House.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Kennedy be disagreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the bill, as amended, be agreed to.