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

by leave—I move amendments (13) and (14) on sheet 5449 together:

(13)  Schedule 1, item 2, page 31 (line 1), after paragraph 346ZJ(1)(b), add:

         or (c)    fail to employ an employee; or

             (d)    treat an employee any less favourably;

(14)  Schedule 1, item 2, page 31 (lines 2 and 3), omit “the sole or dominant reason for the employer dismissing, or threatening to dismiss,”, substitute “one of the reasons for the employer dismissing, threatening to dismiss, failing to employ or treating less favourably,”.

These amendments relate to dismissal and unfair treatment as it relates to whether agreements fail the NDT. Again, this issue was brought up during the hearings, particularly by Professor Stewart and in the ACTU submission. This is another issue that was raised during the last debate over the fairness test. Basically, the provisions in the bill replicate what was in the fairness test and the fairness test provisions. New section 346ZJ attempts to provide protection for employees from dismissal in circumstances where the agreement fails the NDT. There are a couple of issues with the provision. As I said, these are not new issues; they were identified last time we had this debate.

One of the issues is that limiting the protection against dismissal leaves employees open to other forms of adverse treatment, such as demotion and receiving fewer shifts, for example. So dismissal is not the only thing that an employer might do in a potentially discriminatory manner. We believe employees should be protected from this behaviour as part of this bill. The second issue is that there is only protection when the NDT is the sole or determining reason for the dismissal. We believe a stronger protection would be if failure of the NDT is one of the reasons for the adverse consequences or dismissal. So the crux of the matter here is dealing with adverse consequences beyond just dismissal. The other issue we are seeking to deal with is to ensure that failure of the test is only one of the reasons for the adverse consequences. This issue is not new; it was brought up before. I do not see why the government did not pick this up when it drafted the bill, because it seems to me it is blatantly unfair and is, in fact, inconsistent with the government’s approach to fairness to employees.