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

First in relation to Senator Siewert’s proposition, as I said, the government’s bill ensures that the Workplace Authority can consult more widely than previously when designating the award and we think that is the appropriate way in which to deal with this issue.

In answer to Senator Murray’s question—which I believe was: is there any restriction or impediment on employees asking for it?—I am advised that that is not the case.

Question negatived.

by leave—I move government amendments (7), (9) and (11) on sheet PA412:

(7)    Schedule 1, item 2, page 10 (lines 6 to 25), omit subsection 346G(3).

(9)    Schedule 1, item 2, page 12 (lines 14 to 18), omit subsection 346H(2), substitute:

        (2)    The Workplace Authority Director must determine that an award is a designated award for the employee or employees referred to in subsection (1), if the Workplace Authority Director is satisfied that:

             (a)    on the date of lodgment of the agreement or variation (as the case requires), the employee or employees are or would be employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee or employees:

                   (i)    are usually regulated by an award; or

                  (ii)    would, but for a workplace agreement or another industrial instrument having come into operation, usually be regulated by an award; and

             (b)    there is an award that satisfies the requirements specified in subsection (3).

(11)  Schedule 1, item 2, page 12 (after line 37), after section 346H, insert:

346HA  Effect of State awards etc.

                 For the purposes of paragraphs 346G(2)(a) and 346H(2)(a), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:

             (a)    were, immediately before the reform commencement, usually regulated by a State award, or would, but for an industrial instrument or a State employment agreement having come into operation, usually have been so regulated immediately before the reform commencement; or

             (b)    are usually regulated by any of the following instruments:

                   (i)    a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);

                  (ii)    a common rule in operation under Schedule 6;

                 (iii)    a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;

                      or would, but for a workplace agreement or an industrial instrument having come into operation, usually be so regulated.

These amendments go to sections 346G(3), 346H(2) and 346HA, a new section. They are technical amendments to ensure that the ‘usually award regulated’ requirement applies to all designations before and after lodgement of a workplace agreement and to ensure that the references to relevant instruments are correct. Amendment (11) would insert a new provision, section 346HA, which would ensure that the references to each instrument listed above reflect their correct time of operation and deal with the concept of ‘usually regulated by an award both before and after lodgement’. Subsection 346G(3) of the act would no longer be required because it only applies to pre-lodgement designation and would be deleted by amendment (7).

Proposed sections 346G and 346H of the bill relate to the designation of awards for the purpose of the no disadvantage test where there is no other reference instrument against which to test a workplace agreement. Under proposed section 346G—that is, the section dealing with award designation before a workplace agreement is lodged—an award can be designated if the employee or employees in question are employed in an industry or occupation in which the terms and conditions of the kind of work are or would usually be regulated by an award. Amendment (9) would amend section 346H to correct a technical oversight to ensure that this requirement—that is, the ‘usually award regulated’ requirement—also applies in relation to award designation after a workplace agreement has been lodged.

Under proposed section 346G(3) of the bill a reference to an award regulated industry or occupation includes an industry or occupation in which the terms and conditions of employment were usually regulated immediately before the commencement of the Work Choices act by a state award, a transitional Victorian reference award or a common-law or transitional award other than a Victorian reference award to the extent that the award regulates excluded employers in respect of employment of employees in Victoria. Of these instruments, only state awards operated before the commencement of the Work Choices act. The rest were created as federal instruments on 27 March 2006. It is a very lengthy explanation and, as I said at the outset, they are really quite technical amendments.

Question agreed to.