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

I will take this opportunity in the debate—the start of quite a long debate in relation to the Fair Work Bill—to deal with a couple of matters. One of the matters that came up in the contribution I made in the second reading debate was that the bill has an onerous transfer of business requirements. The government recognises the importance of balancing employee protections with the need to encourage businesses to take on employees of the old employer and to operate in an efficient and productive manner. The transfer of business provisions in the bill are drafted so that they are easy to understand and to give business and employees certainties. What we are trying to do is dispel the view that some would have that there are onerous transfer of business requirements. They do preserve employee enterprise agreement and award rights where a business is sold or work is outsourced or moved between related companies, but only where employees move to the new employer. The bill also allows for a business that is deciding whether or not to take over another business or to take on the staff of that business to apply in advance to Fair Work Australia to obtain an order for the old agreement not to transfer at all.

So with those short introductory words it appears we are able to commence. The alternative is that we use the time available to go through some of the amendments on PA 442, which we do not think there is much controversy about. I can provide a short summary to the amendments. There are about 10 or so amendments—two pages worth. We can identify them in order and then I can say something about them. I will not read them out seriatim, but there are about 10. If we deal with those amendments, at least we might be able to clear them. As I understand it, there is very little controversy in respect of them. I seek leave to move government amendments (1) to (7) on sheet PA 442.

Leave granted.

I move:

(1)    Clause 27, page 45 (before line 33), before subclause (1), insert:

     (1A)    Section 26 does not apply to any of the following laws:

             (a)    the Anti-Discrimination Act 1977 of New South Wales;

             (b)    the Equal Opportunity Act 1995 of Victoria;

             (c)    the Anti-Discrimination Act 1991 of Queensland;

             (d)    the Equal Opportunity Act 1984 of Western Australia;

             (e)    the Equal Opportunity Act 1984 of South Australia;

              (f)    the Anti-Discrimination Act 1998 of Tasmania;

             (g)    the Discrimination Act 1991 of the Australian Capital Territory;

             (h)    the Anti-Discrimination Act of the Northern Territory.

(2)    Clause 27, page 45 (line 34) to page 46 (line 6), omit paragraph (1)(a).

(3)    Clause 27, page 47 (lines 11 to 15), omit paragraph (2)(l), substitute:

              (l)    regulation of any of the following:

                   (i)    employee associations;

                  (ii)    employer associations;

                 (iii)    members of employee associations or of employer associations;

(4)    Clause 29, page 48 (lines 5 to 13), omit subclause (2), substitute:

        (2)    Despite subsection (1), a term of a modern award or enterprise agreement applies subject to the following:

             (a)    any law covered by subsection 27(1A);

             (b)    any law of a State or Territory so far as it is covered by paragraph 27(1)(b), (c) or (d).

(5)    Clause 34, page 52 (line 12), at the end of paragraph (3)(a), add “and”.

(6)    Clause 34, page 52 (after line 13), after subclause (3), insert:

     (3A)    For the purposes of extending this Act in accordance with subsection (3):

             (a)    any reference in a provision of this Act to an employer is taken to include a reference to:

                   (i)    an Australian employer; and

                  (ii)    an employer of an Australian-based employee; and

             (b)    any reference in a provision of this Act to an employee is taken to include a reference to:

                   (i)    an employee of an Australian employer; and

                  (ii)    an Australian-based employee.

(7)    Page 53 (after line 16), after clause 35, insert:

35A Regulations excluding application of Act

        (1)    Regulations made for the purposes of section 32 or subsection 33(4) or 34(4) may exclude the application of the whole of this Act in relation to all or a part of an area referred to in section 32 or subsection 33(4) or 34(4) (as the case may be).

        (2)    If subsection (1) applies, this Act has effect as if it did not apply in relation to that area or that part of that area.

Amendments (1) and (2) would make clear that each of the named state and territory antidiscrimination acts continue to apply to employers and employees covered by the bill. State and territory laws dealing with antidiscrimination and equal opportunity are contained in state industrial laws which are otherwise generally overridden. Amendments (3) and (4) are technical amendments to ensure that state or territory laws dealing with the regulation of employer and employee associations are properly preserved and that modern awards and enterprise agreements operate subject to all of the non-excluded state or territory laws. Amendment (5) deals with extra territoriality of the application of the bill. It corrects a typographical error by inserting the word ‘and’ at the end of clause 34(3)(a). Amendment (6) ensures that, if regulations are made to extend the bill’s application beyond the Exclusive Economic Zone and Continental Shelf, any reference to ‘employer’ and ‘employee’ in parts of the bill as extended are deemed to mean Australian employer and its employees and an Australian based employee and their employer. Amendment (7) makes clear that the regulations can exclude the extraterritorial application of the bill in particular areas.

Question agreed to.

by leave—I move government amendments (1) to (7) on sheet PJ 447:

(1)    Clause 124, page 126 (lines 3 to 17), omit the clause, substitute:

124 Fair Work Ombudsman to prepare and publish Fair Work Information Statement

        (1)    The Fair Work Ombudsman must prepare a Fair Work Information Statement. The Fair Work Ombudsman must publish the Statement in the Gazette.

Note:   If the Fair Work Ombudsman changes the Statement, the Fair Work Ombudsman must publish the new version of the Statement in the Gazette.

        (2)    The Statement must contain information about the following:

             (a)    the National Employment Standards;

             (b)    modern awards;

             (c)    agreement-making under this Act;

             (d)    the right to freedom of association;

             (e)    the role of FWA and the Fair Work Ombudsman;

              (f)    termination of employment;

             (g)    individual flexibility arrangements;

             (h)    right of entry (including the protection of personal information by privacy laws).

        (3)    The Fair Work Information Statement is not a legislative instrument.

        (4)    The regulations may prescribe other matters relating to the content or form of the Statement, or the manner in which employers may give the Statement to employees.

(2)    Clause 576, page 461 (lines 8 and 9), omit “, and undertaking activities to promote public understanding of,”.

(3)    Clause 682, page 517 (line 8), before “The”, insert “(1)”.

(4)    Clause 682, page 517 (line 10), after “harmonious”, insert “, productive”.

(5)    Clause 682, page 517 (line 13), after “organisations”, insert “and producing best practice guides to workplace relations or workplace practices”.

(6)    Clause 682, page 517 (line 31), after “Note”, insert “1”.

(7)    Clause 682, page 517 (after line 32), at the end of the clause, add:

Note 2:  In performing functions under paragraph (a), the Fair Work Ombudsman might, for example, produce a best practice guide to achieving productivity through bargaining.

        (2)    The Fair Work Ombudsman must consult with FWA in producing guidance material that relates to the functions of FWA.

The government proposes a series of amendments that ensures that the Fair Work Ombudsman is the primary source of information, assistance and advice within the institutional framework established by the Fair Work Bill. The amendments to clause 682 will enable the Fair Work Ombudsman to produce best practice guides in relation to workplace relations and workplace practices generally—for example, workplace privacy, work and family, use of  individual flexibility agreements and improved workplace productivity and bargaining. The amendments to clause 124(1) will have the effect of making the Fair Work Ombudsman rather than Fair Work Australia responsible for publishing the fair work information statement. The list of matters which must be included in the statement has been expanded to reflect recommendations made in the Senate committee report on the Fair Work Bill.

Question agreed to.

by leave—I move government amendments (1) to (27) on sheet PD 364 revised together:

(1)    Clause 12, page 20 (lines 10 and 11), omit “who is also a police, stipendiary or special magistrate”.

(2)    Clause 539, page 428 (lines 17 to 19), omit “if an undertaking given by the person in relation to the contravention has not been withdrawn (see subsection 715(4))”, substitute “in certain cases where an undertaking or compliance notice has been given (see subsections 715(4) and 716(4A))”.

(3)    Clause 544, page 441 (line 15), after “Note” insert “1”.

(4)    Clause 544, page 441 (after line 17), at the end of the clause, add:

Note 2:  For time limits on orders relating to underpayments, see subsection 545(5).

(5)    Clause 545, page 442 (after line 24), at the end of the clause, add:

Time limit for orders in relation to underpayments

        (5)    A court must not make an order under this section in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced.

(6)    Clause 573, page 458 (lines 21 and 22), omit “Division 7 deals with FWA’s seal, reviews and reports, and disclosing information obtained by FWA.”, substitute “Division 7 deals with FWA’s seal. It also deals with other powers and functions of the President and the General Manager (including in relation to annual reports, reports on making enterprise agreements, arrangements with certain courts, and disclosing information obtained by FWA).”.

(7)    Page 459 (after line 2), after clause 574, insert:

574A Schedule 1

                 Schedule 1 has effect.

(8)    Clause 576, page 461 (line 12), after “section 650”, insert “or 653A”.

(9)    Clause 576, page 461 (after line 12), after paragraph (2)(c), insert:

           (ca)    mediating any proceedings, part of proceedings or matter arising out of any proceedings that, under section 53A of the Federal Court of Australia Act 1976 or section 34 of the Federal Magistrates Act 1999, have been referred by the Fair Work Division of the Federal Court or Federal Magistrates Court to FWA for mediation;

(10)  Clause 596, page 470 (lines 14 and 15), omit paragraph (4)(b), substitute:

             (b)    is an employee or officer of:

                   (i)    an organisation; or

                  (ii)    an association of employers that is not registered under the Fair Work (Registered Organisations) Act 2009; or

                 (iii)    a peak council; or

                 (iv)    a bargaining representative;

                      that is representing the person; or

(11)  Clause 625, page 485 (after line 12), after paragraph (2)(d), insert:

           (da)    publishing the results of a protected action ballot under section 457;

(12)  Clause 625, page 485 (after line 21), at the end of subclause (2), add:

            ; (i)    any function or power prescribed by the regulations.

(13)  Heading to Division 7, page 501 (lines 2 and 3), omit the heading, substitute:

Division 7—Seals and additional powers and functions of the President and the General Manager

(14)  Heading to clause 653, page 502 (line 5), omit the heading, substitute “Reports about making enterprise agreements, individual flexibility arrangements etc.”.

(15)  Clause 653, page 502 (lines 6 to 11), omit subclause (1), substitute:

Review and research

        (1)    The General Manager must:

             (a)    review the developments, in Australia, in making enterprise agreements; and

             (b)    conduct research into the extent to which individual flexibility arrangements under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and

             (c)    conduct research into the operation of the provisions of the National Employment Standards relating to:

                   (i)    requests for flexible working arrangements under subsection 65(1); and

                  (ii)    requests for extensions of unpaid parental leave under subsection 76(1); and

             (d)    conduct research into:

                   (i)    the circumstances in which employees make such requests; and

                  (ii)    the outcome of such requests; and

                 (iii)    the circumstances in which such requests are refused.

     (1A)    The review and research must be conducted in relation to each of the following periods:

             (a)    the 3 year period that starts when this section commences;

             (b)    each later 3 year period.

(16)  Clause 653, page 502 (lines 12 and 13), omit “review the effects that such bargaining has had”, substitute “, in conducting the review and research, consider the effect that the matters referred to in paragraphs (1)(a) to (d) have had”.

(17)  Clause 653, page 502 (line 24), after “review”, insert “and research”.

(18)  Page 502 (after line 31), after clause 653, insert:

653A Arrangements with the Federal Court and the Federal Magistrates Court

                 The General Manager may make a written arrangement with the Federal Court or the Federal Magistrates Court for FWA to provide administrative support to the Fair Work Division of the Court.

(19)  Clause 655, page 503 (line 29), omit “under this Act”, substitute “of FWA”.

(20)  Clause 657, page 505 (after line 8), after subclause (1), insert:

     (1A)    The General Manager also has the following functions:

             (a)    any function conferred on him or her by a fair work instrument;

             (b)    any function conferred on him or her by a law of the Commonwealth.

Note:   Sections 653 and 653A confer additional functions and powers on the General Manager.

(21)  Clause 657, page 505 (lines 9 and 10), omit the note.

(22)  Clause 657, page 505 (line 12), omit “assisting the President”, substitute “performing his or her functions”.

(23)  Clause 658, page 505 (lines 24 and 25), omit “the General Manager’s review of developments in making enterprise agreements”, substitute “the conduct by the General Manager of the review and research, and the preparation of the report,”.

(24)  Clause 671, page 509 (line 14), omit “in relation to assisting the President”.

(25)  Clause 713, page 530 (lines 6 to 12), omit subclause (2), substitute:

        (2)    However, in the case of an individual none of the following are admissible in evidence against the individual in criminal proceedings:

             (a)    the record or document produced;

             (b)    producing the record or document;

             (c)    any information, document or thing obtained as a direct or indirect consequence of producing the record or document;

             (d)    any record or document that is inspected or copied under paragraph 709(e);

             (e)    any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document under paragraph 709(e).

(26)  Clause 716, page 533 (after line 11), after subclause (4), insert:

Relationship with civil remedy provisions

     (4A)    An inspector must not apply for an order under Division 2 of Part 4-1 in relation to a contravention of a civil remedy provision by a person if:

             (a)    the inspector has given the person a notice in relation to the contravention; and

             (b)    either of the following subparagraphs applies:

                   (i)    the notice has not been withdrawn, and the person has complied with the notice;

                  (ii)    the person has made an application under section 717 in relation to the notice that has not been completely dealt with.

Note:   A person other than an inspector who is otherwise entitled to apply for an order in relation to the contravention may do so.

      (4B)    A person who complies with a notice in relation to a contravention of a civil remedy provision is not taken:

             (a)    to have admitted to contravening the provision; or

             (b)    to have been found to have contravened the provision.

(27)  Page 575 (after line 13), at the end of the Bill, add:

Schedule 1—Transitional provisions

Note:                See section 574A.

1 Definitions

        (1)    For the purposes of this Schedule, unless a contrary intention appears, expressions used in this Schedule that are defined in the Workplace Relations Act 1996 (other than Schedule 1 to that Act) have the same meanings as they have in that Act.

        (2)    If:

             (a)    a provision of this Schedule uses an expression defined in both the Workplace Relations Act 1996 and this Act; and

             (b)    it is clear from the context of the provision which of those meanings is intended to apply in that provision;

the expression has that meaning.

2 Appointments to Fair Work Australia

        (1)    An appointment that is:

             (a)    to an office of the Commission mentioned in a table item below; and

             (b)    in force immediately before the commencement time for the table item;

is taken, after that time, to be an appointment, under section 626 of this Act, to the office of FWA mentioned in the table item.

Note:   The person continues to be appointed to the Commission (see subclause (3)).

Appointments to FWA
Item	Column 1 Office of the Commission	Column 2 Office of FWA	Column 3 Commencement time
1	President of the Commission	President of FWA	The day proclaimed for the purposes of item 2 of the table in subsection 2(1) of this Act.
2	Vice President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.
3	Senior Deputy President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of the FW Act.
4	Deputy President of the Commission	Deputy President of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.
5	Commissioner of the Commission	Commissioner of FWA	The first day proclaimed for the purposes of item 3 of the table in subsection 2(1) of this Act.

        (2)    Subclause (1) does not apply to a member of the Commission who:

             (a)    was appointed as a member of a prescribed State industrial authority (within the meaning of the Workplace Relations Act 1996) before being appointed as a member of the Commission; and

             (b)    still holds that appointment as a member of the prescribed State industrial authority.

Dual appointments

        (3)    Despite any provision of the Workplace Relations Act 1996 or this Act, a person who is taken to have been appointed as an FWA Member under this clause continues also to hold office under the Workplace Relations Act 1996.

Note:   The terms and conditions of a person who is taken to have been appointed as an FWA Member are the terms and conditions that attach to his or her appointment under the Workplace Relations Act 1996 (see clause 3).

3 Terms and conditions

        (1)    A person who is taken to have been appointed as an FWA Member under clause 2:

             (a)    holds office under t