Nick Xenophon (SA, Independent) Share this | Hansard source

Could I indicate that, despite the magnificent advocacy skills of Senator Abetz, I am in a position where I support the government’s amendments for these reasons. As I read it, from a point of view of statutory interpretation, subclause (3) would be the primary clause looking at the issue of significant harm. That is still the primary criteria. Subclause (4) looks at factors that may be taken into account by Fair Work Australia. Whilst I understand the concerns that have been expressed by the opposition, and by Senator Fielding, in respect to this, I am significantly comforted by subclause (4)(a) where—the government has not sought to amend it—reference is made to any protected industrial that threatens to ‘damage the ongoing viability of an enterprise carried on by the person’. I see that as a fairly broad catch-all clause.

In any event, it is my understanding, from the point of statutory interpretation, that the primary clause would be subclause (3) where significant harm is the test, and subclause (4) relates to a number of matters that may be taken into account in the exercise of the FWA’s discretion.