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

by leave—I move opposition amendments (19) to (21), (23), (26), (28) and (29) on sheet 5295 revised.

(19)  Schedule 1, item 1, page 18 (line 26), at the end of subsection 346P(5), add:

   ; and (c)    must state the reasons, by reference to the matters referred to in subsection 346M(1), (2), (3) or (4), for the decision of the Workplace Authority Director the subject of the notice.

(20)  Schedule 1, item 1, page 22 (line 27), at the end of subsection 346U(4), add:

   ; and (c)    the reasons, by reference to the matters referred to in subsection 346M(1), (2), (3) or (4), for the decision of the Workplace Authority Director the subject of the notice.

(21)  Schedule 1, item 1, page 24 (after line 6), after section 346X, insert:

346XA Effect if agreement passes review of fairness test

                 If:

             (a)    a workplace agreement is not in operation at the date of the review decision because of the effect of section 346W or 346R that the agreement did not pass the fairness test; and

             (b)    the Workplace Authority Director decides under section 346M on review that the workplace agreement passes the fairness test;

the workplace agreement commences operation on the date of issue specified in the notice of the reviewdecision under section 346ZI.

(23)  Schedule 1, item 1, page 27 (after line 11), after the note to section 346ZB, insert:

Note 2:  This section will operate subject to section 346XA.

(26)  Schedule 1, item 1, page 28 (line 32), at the end of subsection 346ZD(3), add:

           ; (d)    if the employee is entitled to compensation because of the operation of Subdivision G in respect of the workplace agreement—the period of 14 days beginning on the date of issue of the notice of the review decision under section 346ZI.

(28)  Schedule 1, item 1, page 31 (after line 21), at the end of Division 5A, add:

Subdivision G—Review of decision

346ZI Process for review of Workplace Authority Director decision

        (1)    If a notice has been provided by the Workplace Authority Director under section 346J, 346P or 346U and a person as defined in subsection (9) disagrees with the decision of the Workplace Authority Director contained in the notice, the person may notify the Workplace Authority Director of his or her objection and the reasons for the objection.

        (2)    The Workplace Authority Director must, by notice published in the Gazette, set out requirements for the form of a notice to be provided by a person under subsection (1).

        (3)    Any objection must be lodged in writing in the required form within 7 days of the date of receipt of the notice of the decision of the Workplace Authority Director.

        (4)    A copy of the objection must be provided to the other party or parties to the agreement within 7 days of receipt of the notice of the decision of the Workplace Authority Director.

        (5)    If an objection to a decision is lodged with the Workplace Authority Director, the Workplace Authority Director must review the decision and determine whether:

             (a)    under section 346E, the Workplace Authority Director must apply the fairness test to a workplace agreement; or

             (b)    the workplace agreement passes the fairness test in section 346M.

The outcome of the review is the review decision.

        (6)    In reviewing a decision, the Workplace Authority Director may do all things that the Workplace Authority Director may do in making the original decision.

        (7)    The Workplace Authority Director must provide notice of the review decision under section 346J, 346P or 346U to each party to the agreement and each person whose employment is subject to the agreement as at the date of the notice.

        (8)    A review decision has effect as if it was a decision under section 346E or 346M except that a person may not notify an objection in respect of a review decision.

        (9)    The persons who may disagree with a decision of the Workplace Authority Director are:

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

             (b)    each person whose employment is subject to the workplace agreement at the date of the notice; and

             (c)    any representative of a person in paragraph (a) or (b), including a registered organisation; and

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

(29)  Schedule 1, item 1, page 32 (after line 9), after paragraph 337(4)(ca), insert:

           (cb)    information about the procedure for review of a decision by the Workplace Authority Director about the fairness test as set out in Subdivision G of Division 5 of Part 8 of this Act.

In the short time that we have before the break, let me say that these amendments deal with the issue that was raised by Labor in the second reading debate and which has also previously been raised in the public arena. I think it was also the subject of some discussion in the committee stage to date—that is, the lack of review associated with the government’s fairness test. It is an unreviewable process and, we say, a secretive process. Whether an agreement passes the fairness test is a decision which, under the bill, is to be conducted behind closed doors and largely at the discretion of the Workplace Authority Director. That essentially was confirmed by the minister today. As I understand it—and I am happy to be corrected—there is no formal appeal or review process. I think the minister answered that charge by saying that it is not a tribunal. That may well the case, but the point is that it is making decisions that are obviously relevant to people’s rights. To not have any process, or even reasons, for any decision made or a possibility of review—

Prior to the dinner break, I was outlining the reasons for Labor moving these amendments. They centre on the failure in the bill to ensure that there is openness and transparency in the assessment of an agreement. Our concern is that the fairness test is largely a decision to be conducted behind closed doors by a particular official. There is not a requirement to disclose the basis of the decision, such as the assumptions made, the information relied upon and the relative merits of clauses in the agreement weighed by the Workplace Authority Director in arriving at a decision that an agreement is or is not fair.

In addition, there is no opportunity for an employer or an employee to address information provided to the Workplace Authority by the other party as part of that process. I am not even clear on whether any natural justice requirements impinge upon the Workplace Authority’s determinations in this regard. I have to say that the minister’s contribution previously that this is not a tribunal really does not meet the argument. The point is that a decision is being made as to whether an agreement is in accordance with the act or not and whether it is therefore operative. A decision is made to weigh the relative merits of particular provisions in an agreement against the protected award conditions and other matters. We believe that an employee and an employer are entitled to have some transparency in that process.

In essence, we are moving a range of amendments which go to this issue. Our amendments relate to three key decisions that the Workplace Authority Director is required to make under the government’s bill: first, whether or not the fairness test is to be applied to a particular agreement; second, whether the agreement passes the fairness test; and, third, whether an agreement which has been varied passes the fairness test. For each of these agreements, the Workplace Authority Director should be required to provide a notice to the employer and employees who will be covered by the agreement setting out their decision.

Under Labor’s amendments, where the Workplace Authority Director is required to provide employers and employees with a notice in these circumstances, the Workplace Authority Director will also be required to provide in that notice details of how they reached the decision by reference to the criteria set out in the bill. Let us be clear. At the moment, as I understand it, there is a requirement to provide a notice. We are seeking for the notice to also provide details of how the decision was reached by reference to criteria set out in the bill. An example of this would be that, where a notice sets out whether an agreement passes or does not pass the fairness test, the notice must also detail how the Workplace Authority Director applied the factors relevant to the fairness test in proposed section 346M to arrive at a decision.

The rationale behind this is that this will enable an employer or employee upon receipt of a notice to see how the director arrived at the decision. It will bring some degree of transparency, consistency and accountability to the process. If the employer or employee disagrees with the decision or the reason for the decision, under our amendments, they will then be able to raise objections. There will be a time limit for the employer and employee to do this, which we have set out as within seven days of receiving such a decision. If such an objection is raised by the employer or an employee, the director will then be required to make the relevant decision, again taking into consideration the issues raised in the objections notice.

These amendments will go some way towards addressing some of the key failings of the government’s bill and the lack of transparency and accountability in this process and we hope that they would therefore increase the consistency in decision making. This would, in turn, make agreement making somewhat easier for employers and employees in Australia. If the government has the view that this is a test that can be applied consistently, it should not have any fear of amendments which seek to provide some transparency. As Senator Abetz knows, two of the reasons for transparent decision making are (a) to try to facilitate consistency, and (b) to ensure that a process is properly followed. In the absence of Labor amendments, we do have some concerns as to the lack of transparency contained within the government’s bill.

Of course, as I have outlined previously, whilst these amendments do go some way to addressing some of the key failings in this bill, particularly the lack of transparency and accountability in the process, we on this side of the chamber recognise that our amendments do not remedy the inherent unfairness and lack of balance in the government’s Work Choices legislation. As I have previously iterated in this place, the only way to fix Work Choices is to get rid of that legislation altogether and replace it with a modern, simple industrial relations system which is both balanced and productive.