Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Hansard source

I am not sure if the opposition is speaking on this but I would like to indicate that the government is not supporting this amendment. I just want to be clear with Senator Siewert what the effect of the government’s bill is. An ITEA must not leave an employee worse off over all when compared with the underlying instrument in the workplace—and this may be, for example, a collective agreement or an award. I am advised that the fair pay and conditions standard applies by force of law where the standard provides a more favourable outcome than that provided in their workplace agreement. So an agreement cannot purport to exclude the standard. In our view this amendment is unnecessary. We already have a situation where the standard applies by force of law and where ITEAs must be compared against the underlying instruments for the purposes of considering whether or not an employee is worse off. For those reasons the government is not supporting this amendment.

Question negatived.

I move government amendment (5) on sheet PA412:

(5)    Schedule 1, item 2, page 6 (after line 6), after subsection 346D(2), insert:

     (2A)    For the purposes of subsection (1) or (2):

             (a)    a law of a State or Territory that:

                   (i)    relates to long service leave; and

                  (ii)    immediately before the agreement was lodged, applied to an employee referred to in that subsection, or would have applied to such an employee if he or she had been employed by the employer at that time;

                      is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and

             (b)    if, apart from this subsection, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.

This inserts a new subsection. The amendment would further strengthen the agreement-making safety net by making state and territory long service leave laws part of the no disadvantage test where they are not already part of a relevant collective agreement or general instrument. Such laws would not necessarily form part of the no disadvantage test for employees to whom they did not actually apply before a workplace agreement was launched. Where, for example, an applicable award or collective agreement is the basis for the no disadvantage test and excludes a state or territory long service leave law, the Workplace Authority Director would be required to have regard to the agreement or award. If an award is designated for an employee, for example because there is no actually applicable award, and it contains long service leave provisions, the Workplace Authority Director would only have regard to the state or territory law that applied in fact and not the designated award in respect of long service leave. This is consistent with the approach that designated awards are used for the purpose of the no disadvantage test where there is no otherwise applicable instrument.

In short, the amendment ensures that state and territory long service leave laws are part of the no disadvantage test where there is no other federal award or agreement for the purposes of that test which excludes state or territory long service leave law.