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

While I think many constituents in Wentworth are open to the right to disconnect, there is some concern that it's come out of nowhere and hasn't been subject to the usual processes and scrutiny associated with significant changes in IR law, as the member for Warringah illustrated so carefully in her speech. As we consider this legislation, I wonder if the minister might be willing to share who was involved will consultation on the right to disconnect.

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 Wentworth and also acknowledge that I was here for the speech given by the member for Warringah as well. I acknowledge that there are many issues we agree on within my Arts portfolio, but we are regularly in disagreement with Workplace Relations. There are often different views, but the engagement has always been constructive and, certainly, in the interest of their electorates.

The right to disconnect had first been proposed through two parliamentary inquiries. For the work and care Senate inquiry, in terms of their consultation, not everybody would have made submissions on the right to disconnect but there were 125 submissions. It then came up again in the inquiry into the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, where there were 130 submissions; obviously there only would have been a small number that dealt directly with closing loopholes, although I understand it came up directly during some of the evidence taken in the hearings that they held.

Those were the formal parliamentary processes that caused some crossbench members, notably the Greens Party, to make clear last year that their support for the bill would ultimately be contingent on a right to disconnect being legislated. They made that clear publicly. At that point, we as a party adopted it as policy but as a government had not yet declared it at that point. Because it was coming up as a crossbench amendment, I made a point of making some comments about it publicly. Then there was a meeting on 2 February with employer groups, and that meeting has been made public. Not all of the employer groups but some of them had disengaged for some months from direct contact, which I respect—it's their right to do so. They did so very publicly. On 2 February, that was the moment they started to re-engage again. We worked through a lot of issues in the meeting; the right to disconnect was one of them. It would be disingenuous for me to claim that there was a whole meeting about it, but it was certainly an issue that was raised at that meeting with the business groups.

There were conversations back and forth with a number of the groups that were present at that meeting. At that meeting we had ACCI, the BCA, AIG, the Minerals Council of Australia, the Master Builders Association, COSBOA, the Australian Retailers Association and the RCSA there—a series of groups. Subsequent to that, some of them, not all of them, had direct conversations back and forth with my office about different issues of concern they had with a series of aspects of the bill. One of those was the right to disconnect.

Ultimately, the consultation continued between the government, the Greens Party and Senator David Pocock. I'm not sure of the extent to which Senator Jacqui Lambie was involved at that point, but ultimately we ended up at a point where, across Senator David Pocock, the Greens Party and the government, there was a form of words on which all could agree.

There was consultation happening with business in terms of what they viewed as the worst possible ways to legislate if you were going to. I don't want to pretend the business groups were asking for this to be legislated at all, but, in terms of the views that the business groups put about if this were to be done and how they believed it would be more workable than other options, that consultation was certainly very much reflected in the amendment that ultimately went through.

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

I thank the minister for his response. I note that the COIL, the Committee on Industrial Legislation, which typically provides advice to government on IR changes, was not consulted in this instance. Could the minister clarify for the record whether COIL was consulted and, if not, why not.

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

Because my portfolio—I was even guilty of it then, when I listed out the business groups—collapses into a world of acronyms very quickly, I will explain the concept of what the COIL is. Under the Fair Work Act, there is a national workplace relations committee. It involves equal numbers of employer groups and union representatives. It has existed for a long time, regardless of who the minister of the day has been from each side of politics. It has a subcommittee known as the Committee on Industrial Legislation, referred to as COIL. What happens at that meeting is that, when government legislation is introduced, before it becomes public, it goes to that committee on a completely confidential basis. To my knowledge, that trust, no matter what people think of the legislation, hasn't been broken.

What then happens is that you'll get people—under the other side of politics, it's more likely to be the unions; under this government, most recently, you'll get it from some of the business groups—who will say, 'Okay, first of all, I don't want you to do this at all. If you were to, these are the legislative problems with how you're dealing with it.' That's what COIL is and how it works. That's possible for government legislation.

When we are dealing with an amendment that is coming from the crossbench in either house, whether it be the Senate or the House of Representatives, the government cannot present, with any certainty, what is going to be considered in the parliament, because it is the right of the crossbench member to choose their own amendment. That's the reason why the Committee on Industrial Legislation doesn't get consulted on crossbench amendments, nor can it be consulted on crossbench amendments. It is simply because it is the right of the crossbench to move the amendments in whatever form they choose.

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

I thank the minister for his response. I take the point that COIL is typically consulted on government legislation and that the initial legislation implementing the right to disconnect is not government legislation. However, the right was supported by government, presumably after quite a lot of negotiation and internal consideration, and is now law. My question is: would the minister be willing to commit to consulting COIL on significant changes to IR legislation in the future, even for non-government amendments, which are likely to receive government support and become law?

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

I'm really grateful to the member for Wentworth for both raising it and the terms on which it's raised. I don't think it is possible to have a workable way of presenting an amendment to a formal meeting of COIL that we ultimately don't have carriage of. Amendments in the Senate, similar to when amendments have gone back and forth in the House sometimes—which happened a bit on the secure jobs, better pay bill and has happened probably in a more specific way with climate legislation in the House—continue to be varied up until quite close to the time, in which case what was presented to the COIL by the government effectively might not reflect what ends up being introduced.

I am certainly very open to working out what formal processes we can have to make sure that we get the benefit of a similar process. There's no doubt—and anyone who has held my job from either side of politics over the years will tell you—that the time lines of COIL are really frustrating and the outcomes are always helpful. That's something that will always be said. If there is a way of getting that sort of benefit for crossbench amendments, I'm interested in seeing how that might be able to be done. I don't think a direct replication of how it works for government can be done without taking away the effective rights of crossbench members and their agency over their own amendments. But I'm happy to, at the next meeting of the National Workplace Relations Consultative Council, raise the issue of the sorts of processes, even if they're conceptual, and where we can get the benefit of some of those processes, where an amendment is likely to be moved. It would, of course, have to be done in a way where it was really clear that it was still the right of the crossbench, that they might do something different—in which case the government would have to make a call—and that it couldn't be seen as a breach of trust. If we presented something radically different to the parliament to what we presented to COIL, it would be seen as a breach of trust unless the differences were what had been raised at COIL. So, if we can find a way of doing that, of getting some benefit from that sort of process, then I'm certainly open to it, and I'm happy to give the member for Wentworth an undertaking that I will take that up and explore how it might be possible to deal with the principles or policies that we think are likely to come through from crossbench amendments.

Question agreed to.

Bill agreed to.

Ordered that this bill be reported to the House without amendment.