Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

Yes, there are a number of other questions that I wish to pursue. I assume the question in relation to enterprise awards will be answered after dinner. I also asked on notice of the department whether there are any specific clauses in the legislation that put employment levels at the forefront of consideration for Fair Work Australia. I also asked that question in relation to productivity. I got a very detailed answer in relation to the issue of productivity, but, going through the two pages, approximately, of answers—for which I am very thankful—there did not seem to be much in relation to employment levels. It all dealt with the issue of productivity. I think the closest we got was that in one clause consideration must be had for employment costs.

I would have thought that, for any industrial relations regime, employment levels would be at the forefront of consideration. Therefore I am asking: did I miss something before I asked the question about employment levels? If I did miss something, how come the department who answered the question also seems to have missed that? Or, in fairness, how come the minister who answered the question has not been able to point to something in relation to employment levels? Is that part and parcel of the government’s philosophical outlook and ideology—that the issue of employment levels is not a matter for consideration by Fair Work Australia when it undertakes its deliberations in relation to the whole host of matters that it will need to consider?

If officials are getting answers in relation to enterprise awards and employment levels, I will keep moving through the questions that I had placed on notice. My question No. 5 was: what is understood by the term ‘employment record’? I was told, quite rightly, that the term ‘employment record’ is not used in the bill, but ‘employee record’ is. I thank officials for clarifying that, but the answer then indicated that the bill defines ‘employee record’ to mean ‘a record of personal information relating to the employment of an employee, which includes information about’ some things. So it includes those things, and as a result this is not an exhaustive list. That will be a matter for later debate in relation to a union right of entry and the union inspection of employee records. At the moment we seem to have included in the ‘employee record’ the employees’ health, taxation, banking or superannuation affairs and a whole lot of things. I was wondering whether, because the definition uses the word ‘includes’—in other words it is not exhaustive—it could also deal with potential garnishees on wages, child support payments, police records and applications for employment, together with references that may have been provided by third parties in relation to a person’s employment.

I think we were given about 10 or so examples of what the list might include but I do note that ‘employee record’ does not exclude some of the things that I have just mentioned—namely, police record, child support payments, garnishees and references from employees. I am going through it again and I see that it does not exclude any warnings that the employee may have received from the employer which remain on the file. I think that the more exhaustive the list the better, and some of the more controversial areas just do not seem to be on the list. I will see that as an oversight at this stage and not as deliberate, because I am in a very cooperative spirit this evening, but I would be pleased to get a detailed answer to that.

My question No. 6 asked: in relation to the collective bargaining scenarios, in what circumstances could a union not be involved, unless it deliberately did not want to be? I think I was told that that would happen if their employees choose not to be represented by a union in bargaining. If that could be clarified that would be very helpful.

My next question will be of interest, especially at this late stage just before the dinner break. I asked the question: will existing Australian Workplace Agreements be allowed to exist for longer under this regime than they would have under the existing legislation? The answer I was provided with was: the Fair Work Bill 2008 has no impact on existing Australian Workplace Agreements. That is very interesting given the assertion that was made that AWAs were going to be ripped up and that the previous regime was going to be ripped up lock, stock and barrel. It now seems that we have a regime which will allow Australian Workplace Agreements to continue to exist.

Can I also have confirmed—I think this I correct; I have done a quick analysis—that the religious exemption clause that is currently in the legislation in Workplace Relations Act 1996 section 762, is in general terms replicated in Fair Work Bill 2008 clause 485. I assume, Minister, that this is an exemption that only applies to small businesses. If that is the case I was wondering whether the minister could advise us as to why, in the bill, clause 485(1) says:

This Subdivision does not apply in relation to premises if:

(a) no more than—

guess what the number is!—

       20 employees …

That number is very interesting in relation to a future debate that I think we might have around the issue of unfair dismissal and the appropriate number for that.

It would be interesting to have confirmed that this is a direct replication of section 762 of the current regime, which also refers to ‘no more than 20 employees’. We do not argue with that. We just want to ensure that there is a religious exemption in this legislation. In fact, we would commend the government for adopting and accepting the number 20 as being the appropriate number in relation to the religious exemption clause, which only applies to small businesses. I just remind those opposite of that in anticipation so that they can think of some arguments to put after dinner as to why the number in relation to other aspects of small businesses should be 15.