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

by leave—I move government amendments (15), (32) and (35) on sheet PA412 together:

(15)  Schedule 1, page 33 (after line 8), after item 4, insert:

4A  Section 349

Before “An award”, insert “(1)”.

4B  At the end of section 349

Add:

        (2)    Despite subsection (1), if:

             (a)    a person’s employment is subject to a workplace agreement; and

             (b)    but for the workplace agreement, an award would have effect in relation to the person’s employment;

the terms of the award have effect to the extent that they are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.

        (3)    In this section:

outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

outworker conditions means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.

(32)  Schedule 2, item 9, page 96 (lines 23 to 30), omit section 576K, substitute:

576K Terms providing for outworkers

        (1)    In this section:

outworker means:

             (a)    an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer; or

             (b)    an individual who is a party to a contract for services, and who, for the purposes of the contract, performs work:

                   (i)    in the textile, clothing or footwear industry; and

                  (ii)    at private residential premises or at other premises that are not business or commercial premises of the other party to the contract or (if there are 2 or more other parties to the contract) of any of the other parties to the contract.

        (2)    A modern award may include either or both of the following:

             (a)    terms relating to the conditions under which an employer may employ employees who are outworkers (including terms relating to the pay or conditions of the outworkers);

             (b)    terms relating to the conditions under which an eligible entity (within the meaning of Division 4) may arrange for work to be carried out for the entity (either directly or indirectly) by outworkers (including terms relating to the pay or conditions of the outworkers).

                 Note: In paragraph (2)(a), employee and employer have the meanings given by subsections 5(1) and 6(1).

(35)  Schedule 2, page 104 (after line 22), after item 9, insert:

9A  After paragraph 2(2)(s) of Schedule 2

Insert:

           (sa)    subsection 576K(1), definition of outworker;

9B  At the end of subclause 3(2) of Schedule 2

Add:

            ; (j)    subsection 576K(1), definition of outworker.

I will deal with some of the technical issues. I have been asked to indicate clearly on the Hansard the intention behind these amendments. Amendment (15) ensures the continuing operation of award terms about outworking conditions despite any less favourable terms of a workplace agreement. Given the government’s strong and longstanding support for the maintenance of outworker protections, this amendment would continue to ensure that the special terms and conditions of employment for outworkers in awards cannot be reduced in workplace agreements. The former government’s Work Choices laws provided that outworking conditions had effect despite any terms of a workplace agreement that provided a less favourable outcome. Accordingly this amendment was consequential upon the repeal of provisions about protected award conditions. Those provisions are no longer required because under the government’s proposal the full award is the safety net for agreement making.

Amendment (32) inserts a definition of ‘outworker’ to cover employee outworkers and contract outworkers in the clothing, textile and footwear industry so that the award modernisation process does not diminish existing protection for outworkers. The amendment is designed to make clear the government’s intention that modern awards can include provisions relating to both employee and contract outworkers in appropriate cases. This will enable protective clauses like those found in the clothing trades award to be included in modern awards.

Amendment (34) is a minor technical amendment consequential on amendment (32)—in other words, it changes a cross-reference. Similarly, amendment (35) is also a technical amendment consequential on amendment (32), which I have spoken to.

I want to place on the Hansard the government’s intentions in relation to these outworker amendments. The government understands that the clothing trades award contains important provisions in part 9 which are designed to provide specific protections for clothing trades outworkers, whether those outworkers are engaged as employees or contractors. In moving amendments (32) and (35), the government is ensuring that, in the modern, simple award system, these protections can be retained and remain enforceable. That is the government’s clear intention, and the government has been advised that the amendment has been drafted accordingly. The government will continue to monitor the question of protections for outworkers in the award modernisation process. Should it be necessary to further legislate to ensure the continuation in a modern, simple award system of the current part 9 protections of the clothing trades outworkers’ award, the government will do so in its substantive workplace relations bill.