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 amendments (1), (5), (6), (9) to (11) circulated in my name together:

(1) Page 3 (after line 8), after clause 3, insert:

4 Review of operation of unpaid parental leave amendments

(1) The Minister must cause a review to be conducted of the operation of the amendments made by Schedule 2 to this Act.

(3) The review must start as soon as practicable after the end of the period of 6 months after the commencement of Schedule 2.

(4) The persons who conduct the review must give the Minister a written report of the review within 3 months of the commencement of the review.

(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(5) Schedule 3, item 2, page 19 (after line 19), at the end of Division 10A, add:

116F Pecuniary penalty orders

A court must not make a pecuniary penalty order against an employer for a contravention of a civil penalty provision that relates to a contravention of this Division if the conduct constituting the contravention was in accordance with binding advice given by or on behalf of the Commissioner of Taxation.

(6) Schedule 3, Part 1, page 19 (after line 19), at the end of the Part, add:

2A Subsection 546(1) (before the note)

Insert:

Note 1: Pecuniary penalty orders cannot be made in relation to certain conduct that contravenes Division 10A of Part 2-2 (see section 116F).

2B Subsection 546(1) (note)

Omit "Note:", substitute "Note 2:".

(4) If the deductions are for amounts as varied from time to time, any variation that increases the amount of one or more of the deductions must be authorised in writing by the employee.

(9) Schedule 6, item 9, page 26 (line 28), omit "and bonuses", substitute ", bonuses and casual loading but excluding any other monetary allowance, loading or other separately identifiable amount".

(10) Schedule 6, item 13, page 27 (line 26), omit "and bonuses", substitute ", bonuses and casual loading but excluding any other monetary allowance, loading or other separately identifiable amount".

(11) Schedule 8, item 1, page 32 (line 7), omit "or (4B)".

For the benefit of members, I will briefly summarise the effect of these amendments. Amendment (1) will insert into the bill a review of schedule 2 of the bill, which relates to the Paid Parental Leave scheme, which must start after a period of six months of operation of the schedule. Amendments (5) and (6) operate to guarantee that employers who are found to underpay super as a result of an administrative binding order or other arrangement provided by the Australian Taxation Office will not receive a pecuniary penalty from a court. Amendments (9) and (10) together have the effect of clarifying what in fact would constitute eligible wages for the purposes of the long service leave levy and will accordingly make it clearer for employers and employees as to what would constitute eligible wages. Amendment (11) would address the notice period required for flexible unpaid parental. I commend these amendments to the chamber.

Question unresolved.

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

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House.

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

I move amendment (2) as circulated in my name:

(2) Schedule 2, item 49, page 11 (lines 11 to 13), omit the item, substitute:

49 Subsection 74(3C)

Repeal the subsection, substitute:

(3C) If any of the leave covered by the notice is to be taken under section 72A, the notice must specify:

(a) the total number of days (flexible days) of flexible unpaid parental leave that the employee intends to take in relation to the child; and

(b) the intended start and end dates of the leave, or each period of the leave.

For the benefit of members, I explain that the effect of amendment (2) along with amendments (4), (3) and (11) would be to expand the notice period required for flexible unpaid parental leave to include the start and end dates and the number of days at the 10-week point of notice.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The government opposes this amendment on the basis that it would prevent employees from taking flexible unpaid parental leave if they have not given at least 10 weeks notice of the exact dates of their intended leave. Such a notification requirement would remove the flexibility that is intended to be provided and would limit the ability of employees to access payments under the government Paid Parental Leave scheme because unpaid parental leave entitlements under the Fair Work Act facilitates employees taking the time off work necessary to access government parental leave payments.

Question unresolved.

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

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House.

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

I move amendment (3) as circulated in my name:

(3) Schedule 2, item 51, page 11 (lines 18 and 19), omit the item, substitute:

51 Subsection 74(4) (heading)

Omit "72", substitute "72A".

I inform members that the effect of this amendment, working together with amendments (2), (4) and (11), would be to expand the notice period required for flexible unpaid parental leave to include the start and end dates and the number of days at the 10-week point of notice.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The government will not be supporting this amendment on the grounds that it would create confusion for employers. An employee who has given notice of their period of flexible unpaid leave 10 weeks in advance would then be able to change their period of flexible unpaid leave with four weeks notice. The 10-week notice requirement for flexible unpaid leave, amendment (2), imposes an onerous procedural requirement on employees without necessarily giving employers any greater certainty about the exact leave that will ultimately be taken. That would lock employees into taking the flexible unpaid leave for which notice has been given by removing the ability of an employer to agree to a further change request, even if they would have been willing to accommodate the request. It would also remove an employee's ability to give the second notice of flexible unpaid leave after the leave has started if that is the soonest notice can be given—for example, in the case of an unexpected medical emergency.

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

The question is that the amendment be disagreed to.

Question unresolved.

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House on the bill.

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

I move amendment (4) as circulated in my name:

(4) Schedule 2, items 53 to 56, page 11 (line 23) to page 12 (line 8), omit the items, substitute:

53 Subsection 74(4)

Omit "72", substitute "72A".

54 At the end of subsection 74(4)

Add:

Note: Whether or not it is practicable for the employee to advise the employer of any changes to the intended start and end dates of the leave will depend on the employee's personal and family circumstances. For example, it may not be practicable for the employee to advise the employer of any changes to the intended start and end dates of the leave where the employee experiences a health issue, a pregnancy complication or an unexpected change in the employee's child care arrangements.

55 Subsections 74(4A) to (4C)

Repeal the subsections.

This amendment would operate alongside amendments (2) and (11) and would have the effect of expanding the notice period required for flexible unpaid parental leave to include the start and end dates and the number of days at the 10-week point of notice.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

My earlier remarks covered why the government will not be supporting this amendment.

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

The question is that the amendment be disagreed to.

Question unresolved.

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House on the bill.

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

I move amendment (7) as circulated in my name:

(7) Schedule 3, Part 2, page 20 (after line 21), at the end of the Part, add:

7 After subsection 739(2)

Insert:

(2A) The FWC must not deal with a dispute to the extent that the dispute is about the operation of a Commonwealth Act or instrument relating to superannuation.

The effect of this amendment would be to ensure the Australian Taxation Office would remain the administrator of superannuation legislation and legislative instruments, and the Fair Work Commission would not be able to deal with a dispute about the operation of those instruments.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The government will not be supporting this amendment on the grounds that the Fair Work Commission provides an efficient, low-cost option for resolving disputes, and excluding this would be inconsistent with the underlying intention of the act to provide additional pathways for workers to recover unpaid superannuation. The amendment proposed by the opposition would prevent the Fair Work Commission from dealing with terms of the enterprise agreement regarding superannuation and not just disputes relating to the National Employment Standards entitlement to superannuation. It would also limit dispute resolution mechanisms previously agreed to by the parties and would inhibit resolution of disputes regarding existing enterprise agreement terms relating to superannuation.

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

The question is that the amendment be disagreed to.

Question unresolved.

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House on this bill.

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

I move amendment (8) as circulated in my name:

(8) Schedule 5, page 22 (after line 25), at the end of the Schedule, add:

4 At the end of section 324

Add:

(4) If the deductions are for amounts as varied from time to time, any variation that increases the amount of one or more of the deductions must be authorised in writing by the employee.

The effect of this amendment would be to protect workers from being put into a position where higher payments could be automatically deducted without their knowledge and would instead require the employee to specify in writing if the employee agreed to an increase, before the increase was deducted. It is somewhat mystifying that the government has chosen to put into this bill a provision that would essentially allow unions to charge higher fees without a member of the union giving express agreement to that. It is sadly consistent with the usual approach of this government in dancing to the tune of its union masters, which is no doubt closely related to the fact that almost all of the Labor members of the House of Representatives are in a position where their preselection depends very closely on maintaining the continued approval and support of union officials. That is why they have produced in this bill a provision which so disgracefully advances the interests of unions and seriously compromises the interests and financial positions of employees.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The government will not be supporting the opposition's amendment. The Labor Party is indeed a party which has a long history of standing up for workers' rights, but it is beneath the opposition member to somehow suggest that members on this side of the House are beholden to trade unions. We engage with the community sector, business groups and community groups. The Liberal Party of Australia once used to believe that unions had a role to play in public life, but it has sadly eroded to the point where its main aim seems to be to drive unions out of existence even as the union membership share falls to just below one in eight employees.

To go to the specifics of the amendment, the amendment is unnecessary and will defeat the purpose of the legislative changes, which is to allow authorisations to remain in place when the amount of an authorised deduction changes, not only when it decreases. Requiring employers to seek new authorisations when the amount of an authorised deduction increases would not decrease the current administrative burden on employees. The schedule 5 provisions are permissive rather than mandatory. Employers can still choose to offer deductions only for fixed amounts or even not to make salary deductions at all. Employees will still be able to authorise deductions for a specific amount only. Employees who do choose to authorise deductions will have protections provided by the government's amendment as well as the general law, such as consumer protection laws.

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

I'll take a moment just to respond to the assistant minister's rhetorical flourish. An eminent former professor of economics as he is would know very well about the principles set out in the excellent book Nudge about behavioural economics. The simple reality is that these kinds of default arrangement are typically not paid much attention to by employees and so there is the very real risk that they could find the contributions they are making through the union fee that is being charged to them in every pay period increasing without them paying any attention to it. That's highly undesirable.

I well recollect my own experience of being forced to join the Shop, Distributive and Allied Employees Association or union when I was a part-time shop assistant at university. I was never given a choice about whether I wanted to join. The assistant minister airily assures us: 'Don't worry. These provisions are permissive, not mandatory.' We know what happens. There are cosy arrangements struck by union officials because it suits them, and businesses find themselves in a position where it is in their interests to agree if they do not want there to be trouble, if they don't want there to be unnecessary difficulties and if they don't want to have a visit from the CFMMEU carrying some baseball bats to engage in a bit of industrial-style persuasion. That's the kind of thing that goes on. This is just another example of this government finding every opportunity to slip into legislation provisions to advance the interests of the union movement notwithstanding the fact that only eight per cent of Australians in the private sector workforce are members of a union.

Let's be in no doubt. The opposition absolutely accepts that unions have a legitimate and appropriate role in our economy and society. So let's not have this misleading strawman attack, a rhetorical technique which is, frankly, below the assistant minister. Let's deal with precision the issue which is before the House this afternoon. I have to say with some disappointment that what the assistant minister has said is no satisfactory answer to the very real concern that we have raised, and that is why we think this amendment is absolutely necessary.

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

The trade union movements didn't just bring us the eight-hour day and public holidays. They didn't just bring us annual leave and worker safety laws. They also contributed to better pay and conditions. Unionised workers are more likely to go home safe to their families at the end of the day. Unionised workers are more likely to earn more. If the shadow minister's best argument in favour of his amendment is his experience in the 1980s with closed-shop laws that were repealed 30 years ago, I think that says it all for the coalition's position on industrial relations.

Question unresolved.

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

As the question is unresolved, in accordance with standing order 188 the question will be included in the Federation Chamber's report to the House on the bill.

Ordered that this bill be reported to the House with an unresolved question.