Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

I understand that Senator Xenophon might be warmed to this phrase, but the difficulty we face in this is that we do not support the proposed amendment empowering FWA to review an employee’s refusal of a request and impose penalties. The challenge there is that this goes against a longstanding position. The amendments would involve FWA, which is not a court, granting remedies for breaches of the NES. This would involve the excise of judicial power by a non-judicial body and would therefore be unconstitutional. Although a legal phrase, it is pretty much accepted around the chamber, at least from the opposition’s perspective. Since the boilermakers case, that has been the position on Australian commissions, such as the Australian Industrial Relations Commission and subsequent bodies, even under Work Choices. That is a significant impediment to getting that system to work.

Effectively, that would mean that the underpinnings of the system would fall away, because FWA could not make a decision on that because it is a non-judicial body. Therefore, the government does not agree that there is scope to allow the parties to involve FWA and has proposed amendments to enable this to occur. The amendments will make clear that the terms of the National Employment Standard can be replicated in an enterprise agreement. Where those terms are replicated, they will operate as terms of the agreement and disputes about these terms can be dealt with by FWA under the dispute settling terms of the agreement.

We cannot agree to the amendments that are being sought by the Greens, for a range of reasons, including those articulated earlier. It is open to the parties to discuss flexible working arrangements. It is also worth observing that there is antidiscrimination legislation in place. The NES entitlement to paid and unpaid carers leave also provides a source of support. The additional procedural requirements that these amendments impose fall under the hammer of being unconstitutional and there are better systems to use. We should not be trying to reverse a principle in a way that I do not think we can legislate for. I will leave it at that point.