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

by leave—I move amendments (1) to (19) on sheet 5745 together:

(1)    Clause 144, page 140 (line 7), omit “must”, substitute “may”.

(2)    Clause 144, page 140 (after line 11), after subclause (1), insert:

     (1A)    FWA is to include a flexibility term if it considers it appropriate for the industries or occupations covered by the award.

(3)    Clause 144, page 141 (after line 9), after subclause (4), insert:

Individual flexibility arrangement must not be a condition of employment

     (4A)    The requirement for genuine agreement in paragraph (4)(b) includes a prohibition on an individual flexibility arrangement being put forward by the employer as a condition of employment.

(4)    Clause 201, page 187 (line 2), omit “taken”, substitute “agreed”.

(5)    Heading to Division 5, page 188 (line 2), omit the heading, substitute “Division 5—Flexibility terms and consultation terms”.

(6)    Heading to clause 202, page 188 (line 3), omit the heading, substitute “202  Enterprise agreements may include a flexibility term”.

(7)    Heading to subclause 202(1), page 188 (line 4), omit the heading, substitute “Enterprise agreement may include a flexibility term”.

(8)    Clause 202, page 188 (line 5), omit “must”, substitute “may”.

(9)    Clause 202, page 188 (lines 25 and 26), omit subclause (4), substitute:

        (4)    An employee and employer may agree to include the model flexibility term in an enterprise agreement.

(10)  Clause 203, page 189 (after line 19), after subclause (3), insert:

Individual flexibility arrangement must not be a condition of employment

     (3A)    The requirement for genuine agreement in subsection (3) includes a prohibition on an individual flexibility arrangement being put forward by the employer as a condition of employment.

(11)  Clause 265, page 237 (line 14), after “subsection 264(1)”, insert “and allowed by section 274A”.

(12)  Clause 268, page 240 (line 9), after “subsection 267(1)”, insert “and allowed by section 274A”.

(13)  Clause 271, page 243 (line 35), after “subsection 270(1)”, insert “and allowed by section 274A”.

(14)  Clause 273, page 245 (lines 18 to 23), omit subclause (4).

(15)  Page 246 (after line 25), after clause 274, insert:

        (1)    A workplace determination may include a flexibility term that would, if the workplace determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements.

        (2)    FWA may decide to include the model flexibility term in the determination.

Note:                The factors FWA must take into account in deciding terms of a workplace determination are set out in section 275.

(16)  Clause 144, page 141 (after line 13), at the end of the clause, add:

        (6)    The employer must lodge with FWA a copy of any individual flexibility arrangement within 14 days of the arrangement being signed in accordance with paragraph (4)(e).

Note:   This subsection is a civil remedy provision (see Part 4-1).

        (7)    FWA must make publicly available on request copies of individual flexibility arrangements lodged in accordance with subsection (6), with information that would identify the parties to the arrangement removed.

(17)  Clause 203, page 190 (after line 19), at the end of the clause, add:

        (8)    The employer must lodge with FWA a copy of any individual flexibility arrangement within 14 days of the arrangement being signed in accordance with paragraph (7)(a).

Note:   This subsection is a civil remedy provision (see Part 4-1).

        (9)    FWA must make publicly available on request copies of individual flexibility arrangements lodged in accordance with subsection (8), with information that would identify the parties to the arrangement removed.

(18)  Clause 539, page 429 (after table item 4), insert:

(19)  Clause 539, page 430 (after table item 5), insert:

I sought leave to move all these amendments together because they relate to the issues around flexibility. The Greens are very concerned about individual flexible arrangements. I articulated this in the second reading debate. It is an issue that we have held discussions with government about. I will seek in a moment some confirmation from the minister about the review of individual flexible arrangements. We are very concerned that they will be used as AWAs were. We all know that AWAs significantly undermined workers’ rights and conditions, particularly pre Work Choices AWAs and particularly those that operated in my home state in of Western Australia. Coming from WA, where pre Work Choices AWAs were used more widely than in the rest of the country, I know that, despite the need for them to meet a no disadvantage test against the award, they were still used to undercut the take-home pay and conditions of vulnerable employees. We are concerned that this may happen with individual flexible arrangements.

We acknowledge that there are more protections for workers under this bill, with IFAs, than there were with AWAs, in particular the provision allowing employees to terminate an IFA with 28 days notice and the fact that it will be more difficult for IFAs to be used as such an explicit anti-union mechanism as AWAs were. We also acknowledge that IFAs could be used effectively in, for example, allowing more family-friendly conditions. However, we are still concerned, as are many others—and I will get to that in a minute—that they have the potential to undermine award conditions and collective agreements and be used to exploit more vulnerable workers.

Our amendments do not merely oppose the clauses providing for IFAs, although that is our preferred option and we made that plain earlier. We propose there should not be mandatory terms in awards or agreements. Rather, it should be at the discretion of FWA whether such clauses are appropriate for each modern award, and it should be up to the parties to an enterprise agreement whether and to what extent such clauses are appropriate. There may be industries or occupations where such arrangements are not appropriate—for example, occupations that have 24-hour rosters and provide essential services, such as firefighting. In these circumstances, it should be up to the parties or FWA as to whether such clauses should be included in an award or an agreement.

We also propose that it should be explicit in the legislation that IFAs cannot be offered as a condition of employment. Amendments (16) to (19) in relation to IFAs relate to our concerns about transparency. As currently provided for in this bill, IFAs are written and signed and then nothing happens to them unless a breach is taken to court. We appreciate the government not wanting to replicate the bureaucratic nightmare of AWAs being checked by a government authority, but the problem we have is that we will not know how they are being used, who is using them and in what circumstances.

The Greens support the suggestion made to the Senate inquiry by Dr John Buchanan that there be a process of lodgment but not checking, with the agreements being able to be accessed publicly, but without revealing the parties, so there may be some transparency in the system. I have moved amendments to this effect. Dr Buchanan argued for the need for greater transparency, submitting:

Given that standards slid where agreements were collective in nature and subject to public scrutiny, the prospect for their erosion where they are individually made and not publicly registered is a matter of significant concern.

These agreements must be made available for independent scrutiny to help ascertain the impact they are having. What the government has committed to—because I think I can foresee the vote already—is that a review of the use of IFAs will be undertaken. We appreciate the government’s commitment to that. However, we do think it would be better to fix up the potential problem before it starts rather than waiting for problems—when the horse has bolted—before looking at whether conditions and entitlements have been undermined and then having to put in place a remedy to address that issue. We commend these amendments to the chamber.