Rachel Siewert (WA, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments (11), (14), (15), (16) and (17) on sheet 5285.

(11)  Schedule 1, item 1, page 15 (lines 27 and 28), omit “, on balance, the collective agreement provides fair compensation, in its overall effect on the employees”, substitute “the collective agreement provides fair compensation to each employee”.

(14)  Schedule 1, item 1, page 16 (lines 1 to 29), omit subsections 346M(2) to (5).

(15)  Schedule 1, item 1, page 16 (after line 35), after subsection 346M(6), insert:

     (6A)    The employer, the employees and their representatives and the unions party to an agreement must be advised of and have the opportunity to verify or refute information provided to the Workplace Authority Director under subsection (6) in relation to the agreement that covers the employer, employees or would bind the union.

(16)  Schedule 1, item 1, page 16 (line 36) to page 17 (line 6), omit subsection 346M(7), substitute:

        (7)    In this section:

fair compensation, in relation to an employee, means the provision of an additional benefit or advantage that:

             (a)    is of significant and immediate value (whether financial or otherwise) to the employee; and

             (b)    fully compensates the employee for the exclusion or modification of the relevant conditions.

(17)  Schedule 1, item 1, page 17 (after line 6), after section 346M, insert:

346MA  Workplace Authority Director to provide reasons for decisions

        (1)    If the Workplace Authority Director makes a decision in accordance with section 346M, the Workplace Authority Director must provide a written statement of reasons for that decision to:

             (a)    the employer in relation to the workplace agreement;

             (b)    if the workplace agreement is an AWA—the employee whose employment is subject to the AWA;

             (c)    if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

        (2)    A party to a workplace agreement which has been subject to a decision made in accordance with section 346M may appeal to the Federal Magistrates Court for a review of the decision in accordance with the Administrative Decisions (Judicial Review) Act 1977.

These amendments are about the application of the fairness test. Because they are slightly different, I will speak to each one. Amendment (11) is about how the fairness test applies to collective agreements. The amendment provides that collective agreements past the test only when no employee loses conditions without compensation. Under the bill, a collective agreement is assessed to have its overall effect, which means some employees could be worse off with no fair compensation. I have a question there about why it is considered fair if individuals are not also better off.

Amendment (14) is the deletion of matters to be taken into consideration. This amendment deletes the subdivision that allows the Workplace Authority director to take into consideration employees’ personal circumstances and a business’s industry location or economic circumstances. With personal circumstances, there is an issue that allows for discriminatory outcomes, with no review of decisions. This type of provision is open to abuse, with vulnerable employees being exploited—and we touched on that earlier. On the circumstances of the business, we do not believe that what we see as a core condition should be traded away for anything less than fair compensation and that the state of a business, particularly in terms of industry or location, should be taken into consideration.

Amendment (15) provides that, if the Workplace Authority Director obtains information under subsection 346M(6), such information must be provided to the other parties of the agreement to be verified or refuted. It is a matter of general principle that, if someone is making a decision that materially and, in particular, detrimentally affects a person, that person is entitled to know the information being considered and have an opportunity to reply.

Amendment (16) deletes the definition of ‘non-monetary compensation’ and puts in the definition of ‘fair compensation’. The definition is from Professor Andrew Stewart’s submission to the inquiry, and even in his submission he admits that it is not perfect but better than the current bill. We have also had a discussion about what is a definition of ‘fair compensation’. The amendment emphasises the need for benefits to be additional to those already enjoyed and to have immediate, rather than potential, value for the worker and to provide for full compensation.

Amendment (17) is an attempt to provide some accountability for the test. It provides for the Workplace Authority Director to provide written reasons and furnish them to the parties. It also provides for an appeal of a decision on the fairness test to go to the Administrative Appeals Tribunal. The subjective nature of the test without the accountability that comes with a review opens up the potential for unfair results. We need to understand the need for certainty and timeliness, but there is also a need to balance the fact that people’s livelihoods can be affected by these decisions. We believe a review process assists to ensure that the test is applied fairly, robustly and consistently.

All these items go to improving fairness and putting fairness into the fairness test. There are a number of items that we believe are unfair in this area and we are seeking to address them. As I said earlier, I would particularly like to know why it is considered fair if an individual loses out in a collective agreement under the overall effect provision, rather than ensuring that no employee is worse off without fair compensation.