Mark Arbib (NSW, Australian Labor Party, Minister Assisting the Prime Minister for Government Service Delivery) Share this | Hansard source

I think it is no surprise that we also will not be supporting these amendments. Can I just say briefly, because obviously there are time constraints, that the government are committed to ensuring that all employees have the full benefit of the National Employment Standards from 1 January 2010. These amendments are inconsistent with that commitment and would undermine the safety net. The NES contain the basic conditions that every Australian employee should have the benefit of—conditions like personal leave, annual leave, compassionate leave and parental leave.

A global approach to the implementation of the NES would deny many employees access to the full benefit of the NES, as this would allow the NES to be displaced by an existing instrument. It would allow an employer to raise arguments like this: that a pay rate that is 20c per hour above the award should allow them to not provide parental leave or the right for parents to request flexible work when they have young children. An employer could try and argue that a pay rate that is 20c per hour above the award means that they should not have to provide for leave to attend a funeral.

We say that the NES set out the most basic of employment conditions that should never be allowed to be stripped away or traded off. Unlike the Liberals, who only provided five basic conditions, the NES provide for 10. The NES were the subject of extensive consultation with employers, employees and the public. A public exposure draft process was provided. There was a committee on the industrial legislation process also. The balance in the NES is fair and it is right. Employers and employees have known the content of the NES since mid-2008 and have had a very long time to plan for their introduction on 1 January 2010.

The bill seeks to minimise the disruption of existing arrangements. Existing terms are able to continue, provided they are not detrimental in any respect. It is only in the case of detriment that the NES prevail. This is a simple rule. Where there is any doubt about how they apply in a particular case, Fair Work Australia will be able to resolve this difficulty. By comparison, the global approach proposed by the Liberals would be complex and disruptive to employers and employees. It would obviously create uncertainty. It would require, for example, a mechanism for third-party assessment of whether the global value of entitlements passes the test.

In relation to a number of Senator Abetz’s criticisms, can I raise the fact that, through subitem 26(1) of schedule 3, the bill already enables a person covered by a transitional instrument to apply to Fair Work Australia for a variation to resolve an uncertainty or difficulty relating to the interaction between the transitional instrument and the NES or to make the transitional instrument operate effectively with the NES.

One situation in which an application could be made to vary an agreement-based transitional instrument is where parties have agreed to an additional number of days of annual leave in substitution for public holidays, but where the agreement does not clearly state that the additional days reflect an agreement that the additional days are provided in substitution for the public holidays. An application could be made to Fair Work Australia to vary the instrument to make it clear that those additional days of leave are substituting for public holidays. This is already available in subitem 26(1).

Subitem 26(1) is intended to be a flexible power. In this case it would be open for Fair Work Australia to vary an agreement-based transitional instrument to reflect an agreement between the parties that additional days of leave are substituted for public holidays. Therefore we cannot support the amendments.

Question negatived.