Andrew Murray (WA, Australian Democrats) Share this | Hansard source

highly prescriptive and very annoying. So whilst I certainly would not claim clean hands on this matter, I do suggest you avoid pointing fingers at me or the Democrats for being of a prescriptive frame of mind.

Returning to the discussion, it seems to me that the government may have built an unnecessary cross for it to carry, because if you look at section 16(3)(c) the substantive clause has got the subordinate clauses attached to it, and it refers to safety management arrangements. That sounds like a slippery way of trying to infer informality. But that can never get you away from the duties which have well-established jurisprudence with respect to employer-employee obligations. However, if you look at subordinate clauses (a), (b), (c), (c)(i), (c)(ii) and (d), you will see that a number of words appear there for which the arrangements may provide—in (a), for a policy; in (b), for arrangements; in (c), for agreements; in (d), for training; and in (c)(i) and (c)(ii), for consultation and such other matters. It seems to me that in any situation where these matters are taken to a court—and the Lord forbid that occurs, but these things do occur—a judge would look at this in totality and would aggregate those and say they have a commonality or congruence.

As you know, I am not a lawyer, but through my various business arrangements over the years I have probably spent millions on those, so I have learnt some of their tricks, much to the collective cost of the businesses I have been involved with. It seems to me that you cannot escape the inference that an arrangement is a formal obligation in law. Therefore, I am surprised you have used different language throughout and that a definition was not simply established up-front that an agreement can be an arrangement, policy, this, that or the other. However, I am surprised at the range of legislative language used. Perhaps there is a good reason for it which I have not had my attention drawn to.

Returning to the object of the amendments, they are to provide some clarity with respect to these issues—to make the obligations and responsibilities clear. That is all. The government and its officers might well have been able to design them better, but in my view they improve what you have before us.

Question negatived.

I move Democrat amendment (3) on sheet 4847:

(3)    Schedule 1, item 12, page 7 (line 9), omit “12 month”, substitute “5 year”.

The government’s bill seeks to introduce certificates so that employers can be satisfied that a union has membership in their organisation. The Bills Digest notes that the certification process is more stringent in this current bill than in previous versions of the bill, and these certificates are planned to run for only 12 months. It is highly unlikely where there is a representative union that union membership would cease to exist within a 12-month period. I am far from an expert in union matters—and perhaps the shadow minister could tell us—but I believe that normal union membership is the period of the membership itself and then you get a leeway of several months in case you have not renewed your financial membership in time. So, typically, I would not expect union membership to be a precise 12-month period.

There are already checks and balances in the bill which would allow a certificate to be cancelled by Comcare if the union had no members in the workplace. Given the administrative impact on unions and employees—the onerous and stringent nature of the certification process—wouldn’t it be more practical and reasonable for the certificate to be valid for a longer period of time? Accordingly, the amendment proposes to increase the life of the certificate from 12 months to five years—bearing in mind that we would expect that the persons to whom the certificates relate would be related to arrangements or agreements which would have a tenure much longer than just 12 months. You need to try and coincide these things. I cannot imagine any employers or even unions in their right minds wanting to keep changing these agreements throughout a short period of 12 months.