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

No. Let me come to the argument. The amendment, of course, amends this provision. What I am simply setting out, which is taking longer than I hoped, is what the current provision is. Then I will say why your argument, although well reasoned, is wrong. Then I will say why you should support ours. Allow me to continue. Clause 426 uses the word ‘must’ and then if you drop down to the third party under 1727, at the first dot point, you find it says:

any potential damage to the ongoing viability of an enterprise carried on by the third party ...

And the second dot point says:

any threatened disruption to the supply of goods or services to an enterprise carried on by the third party ...

The amendment seeks to give greater guidance to Fair Work Australia to use the dot points that I have just indicated. I think Senator Abetz was arguing that those points are cumulative but they are not; they are alternatives. So it refers to disruption for an extended period, significantly reduce or cause serious economic loss to a third party. So if the case that was being raised was a small business down the track, and action was causing serious economic loss to a third party, then the protection is still there. It has not disappeared. It has not been watered down or changed. If it is a third party’s capacity to fulfil a contractual obligation or fulfil the majority of its business is significantly reduced, the protection is not impaired—nor is it if there is a disruption, for an extended period, of the supply of goods or services to an enterprise carried on by a third party.

At the moment we are looking at the two provisions. The first existing provision under 426 says ‘must suspend protected industrial action’ and then it goes on to talk about any ‘threatened disruption to the supply of goods or services’. We are seeking to take into account that where that provision operates it may not get the balance right between the rights of the employees to take protected industrial action and the rights of a third party not to have it cause serious economic loss to them, or to significantly reduce their capacity to fulfil a contractual obligation, or disrupt for an extended period the supply of goods or services to an enterprise carried on by them.

This is all put within the framework that these are factors that the FWA may take into account when determining whether protected industrial action has threatened to cause significant harm to a third party as specified in 426(4) under the existing EM. So it is still a decision that Fair Work Australia will make with respect to that, taking all those circumstances into account. They will obviously be able to hear from both parties and those interveners, should there be any, in those matters.