Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Hansard source

The amendments we are currently discussing—I have dealt with the redundancy provisions—also include amendments relating to a stand-down power. Proposed new section 691A of division 7 sets out the powers of an employer to stand down an employee because of: a strike, a breakdown of machinery or any stoppage of work for any cause where the employer cannot be held responsible. There are a number of comments I want to make about this. First, it seems to the opposition reading this amendment that it is quite clear that it effectively gives employers the power to stand down their employees in quite a wide range of circumstances. It is a significant tilting of these arrangements in favour of the employer. We are extremely concerned that the move could further undermine job security. There is nothing in this amendment for employees.

There is one particular detail I want to focus on, and that is new clause 691A(1)(c)(ii). This essentially has the effect of saying that, even if you and your employer have agreed to a provision which deals with the process of stand-down—one that says, ‘There has to be this discussion or this notification,’ and the employer has the right to stand an employee down but first they have to go to the commission, a state industrial authority or another person or body which has been agreed—that agreement has no effect. That is the effect of the combination of clauses 691A(1)(c) and 691A(5). So even if you have an agreement with your employer to undergo a process before the employer can stand down employees—a process which includes going to the commission, a state industrial authority or another body which has been agreed—these clauses say that you do not have to comply with that.

It is interesting to note that this government gives a lot of weight to the notion of freedom of contract when it suits it. It gives a lot of weight to the notion of freedom of contract where it is the employer’s freedom to offer an AWA which removes entitlements. But here, where these are agreements which might give an employee some protection in terms of a process or a third party being involved prior to a decision by an employer to stand an employee down, the government say, ‘No, we want to bypass that.’ It is a bit like—and I think we had this discussion previously—the prohibited content provisions of the, ‘Work No Choices’ legislation which enable the minister to determine that something that has been agreed between industrial parties is prohibited content and therefore has no effect.

Again, as I said, the government are very happy to talk about freedom of contract when it comes to the Commonwealth Bank offering AWAs which remove 46 award provisions, including penalty rates, rostered days off and overtime. They are happy to talk about freedom of choice in those circumstances, but in other circumstances where there have been agreements made which give employees certain rights and entitlements they are also very happy to use the power of the legislation to override those rights—as, we would say, they have done in effect in a whole range of areas in the Work Choices legislation.

We are extremely concerned about the stand-down provisions. We on this side of the chamber are vehemently opposed to them. We think they unfairly tilt the balance of power in favour of the employer. We think there is very wide scope for those provisions to be misused and we will be opposing them. So I ask the minister, if other senators are not making any further contribution on these amendments, whether he could respond, particularly to the Tristar redundancy issue that I raised.