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

Government amendments (10) to (13) before us are in fact the heart of the government’s proposed adjustments to the Work Choices regime. The issues just referred to by the shadow minister are indeed right. The way in which the Work Choices legislation hearing and debate were dealt with were in fact offensive, not just offensive to the senators who were opposed, because of the way in which the debate was managed, guillotined and cut off, but offensive to good process. Good process as a legislator means the opportunity to identify problems with complex legislation which even the brightest of advisers in the department will not be able to see all the way through to realise what the effects are.

We have here, again, a substantial swag of amendments: 39 pages on sheet RC275, which came in on 28 November, so that is four days ago. I will be frank: we as the Democrats have not had the opportunity to really understand and comprehend them to the fullest extent possible. We would have been considerably assisted by a committee process to establish where they were favourable, where they were unfavourable and where there were drafting problems. The fact is that, whatever the law, governments constantly need to amend it. It is far better to amend it in its primary form than to have to amend it thereafter, because of course those to whom the law applies then have to adjust their systems, their understanding and their own reference points.

While some of these amendments do appear to improve the Workplace Relations Act as amended by the government last year, with the limited time given for this chamber to examine them I am hesitant to give them full support. We did ask the whips to convey a message that we wanted these matters examined in a short committee process. That has not happened, although I note that the government did give a few extra days for us to get across these. There do appear to be drafting errors which might need correction.

We think this is bad process, frankly. The government is now referring bills to committees for inquiry with short reporting dates, and, in some cases, the very short inquiry is then followed by a long gap before the bill actually gets to the parliament. That has certainly been the case with the Independent Contractors Bill.

Despite what we regard as increasing abuse of the Senate committee system, Senate committees are still working. Just last week, the minister removed from a social security bill a key and controversial schedule giving search and seizure powers to Centrelink officers. The Independent Contractors Bill itself benefited from the minister reacting positively to the committee’s views on outworkers. So the committee system does still work, despite what we regard as most unfortunate changes to the way in which committees operate. I must say that we would have appreciated running substantial amendments through the committee, and we ask the government to consider, for future significant amendments to workplaces legislation, giving sufficient time so that committees can examine these matters.

These amendments seem to address unintended consequences of the Work Choices legislation. The government is moving to address those unintended consequences. We think mistakes will have been made—and have been made—in that legislation. It is good to see the government correcting them, but of course, in the meantime, it puts business and employees in difficult situations where the legislation is imperfect to begin with.

The High Court’s recent decision to grant the federal government its right to exercise the corporations power in the way it has over the state industrial relations systems has, I think, three effects. Firstly, it stops people waiting for that decision before deciding how to deal with this legislation. I think there has been a bit of that going on. Secondly, it makes the community realise that, if they want that legislation to change, they will have to overturn the coalition government. It is my view, I might say, that, if the coalition government is returned at the next federal election, it will be an indication that that legislation has been given an official tick-off by the electorate, because this Work Choices policy was not taken to the last election. Thirdly, there is a danger that this wider power granted by the High Court will be used in other areas, which will make the states very unhappy.

There have been a number of high-profile cases that we have seen publicised, which these amendments in part address. Amongst the cases I can think of over the recent past are the Spotlight case, the Cowra abattoir case, the Lufthansa call centre case, the Heinemann Electric centre case, the Western Sydney construction site case, the Hilton IGA supermarket case, the Feltex carpet-making business case and so on. Those sorts of cases have a number of advantages. Firstly, they inform the political and policy debate amongst the broader community. Secondly, of course, they have the value of alerting the government to genuine issues and problems and, because the government want to get re-elected, they therefore react positively in some cases to fix this.

Having made those general comments I want to deal with some of the specifics before us. Government amendment (10) relates to protecting redundancy entitlements and preserves the agreement terms providing for redundancy pay where the agreement is terminated or where there is a transmission of business for a 12-month period, unless the parties agree otherwise. These measures would apply in relation to workplace agreements, pre-reform certified agreements and pre-reform Australian workplace agreements. In the case of a workplace agreement, redundancy provisions would be preserved where the agreement is unilaterally terminated by the employer with 90 days notice. In the case of a pre-reform certified agreement or pre-reform Australian workplace agreement, redundancy provisions would be preserved where the agreement is terminated by the Industrial Relations Commission on application by the employer, where it is not contrary to the public interest.

The changes to schedule 3 would also provide for the treatment to preserve redundancy provisions on transmission of business. These provisions seem to be a direct response to the Radio Rentals case in South Australia and the current Tristar case. In spite of there being no work at Tristar, the longest serving employees are being kept on until after 30 September, when their enterprise bargaining agreement expires. While the provision is an improvement on the current situation, we Democrats have been alerted to potential flaws and administrative problems. The new provision preserves the agreement for 12 months. The question then is: what is to stop an employer keeping someone on for 12 months, say in the transmission of business, and after 12 months letting them go? So it is effectively a transition arrangement and not a protective arrangement. There are also concerns that the new provision will not protect those let go for operational reasons. The government’s Work Choices amendments made it easier for employers to use operational grounds for releasing a worker. The new provisions also leave it up to the employer to inform employees about redundancy entitlements rather than an independent third party like the commission. As I said, there are uncertainties that the new provision will meet the stated objectives, and we are not in a position to form a final opinion.

Government amendment (12) relates to the Australian Fair Pay and Conditions Standard. It makes a number of technical amendments to part 7 of the act, relating to the standard. It modifies the frequency of payment guarantee so that a contract of employment or workplace agreement guarantees an employee frequency of payment for periods of one month or less and compels the employer to comply with such provisions; caps the accrual of annual and personal carers leave so that leave does not accrue in respect of hours worked above 38 hours per week; changes the payment rule for personal carers leave, compassionate leave and leave for pregnant employees who cannot be transferred to a safe job so that an employee is entitled to be paid a rate for each hour of leave taken at his or her hourly basic periodic rate of pay, which is consistent with the payment rule for annual leave; and enables an employee to request to cash out an amount of paid personal carers leave each year, provided the minimum balance of at least 15 days leave remains available after cashing out for full-time employees and pro rata for part-time employees.

This has been advocated by some unions. Others are concerned that it will encourage people to stay at work while they are sick so that they can get more cash. It may discriminate against those with chronic illnesses if they do not get to bank their sick leave. So there are supporters for and those against. The amendments do appear to be a result of drafting errors in the original legislation, which the government has been criticised for and which have caused concern for business in terms of calculating and paying leave in accordance with the new standard. So some of amendment (12) is an improvement on the current act and some makes a return to pre-reform conditions. There do seem to be a couple of negatives within that amendment, such as  giving the minister greater power under section 12(4) to exclude more categories of shiftworkers.

Government amendment (13) clarifies relationships between standard and pre-reform certified agreements; ensures that employees may waive both requirements of a workplace agreement and the requirement to have the information statement for seven days; deals with notional agreements preserving state awards; and makes other miscellaneous technical changes. Again, without sufficient time to consult and examine the consequences of this amendment, it is difficult for us to form a final opinion. The parts of the amendment which we consider to look attractive are amendments which will require an employer to give a copy of an AWA to their employee and provide for penalties if they do not do so; those which allow employees to terminate AWAs as provided in the AWA or on 90 days notice after the agreement is expired; those which broaden public holiday provisions by allowing public holidays to be observed on substituted days when those are provided in state legislation; and those which increase penalties for contravention of the regulations.

Areas of concern include where an employer lodges the AWA and there is no way of checking if they lodge the correct one until it goes on the web. It was meant to deal with the issue of the OWS taking four months to put contracts up on the web, but the provision is convoluted. A simple solution would have been to require both the employer and the employee to sign a statutory declaration. I have a few other remarks to make but, in broad, I hope that indicates that we think it is a bit like the curate’s egg—there are parts of the egg we are not sure how to evaluate.