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

by leave—I move the amendments (1) and (2) on sheet 5871:

(1)    Schedule 3, item 23, page 34 (after line 17), after subitem (1), insert:

(1A)         If there is a dispute about the application of this item which must be resolved by FWA in accordance with item 26, FWA may compare the entitlements which are in dispute:

             (a)    on a ‘line-by-line’ basis, comparing individual terms; or

             (b)    on a ‘like-by-like’ basis, comparing entitlements according to particular subject areas; or

             (c)    using any combination of the above approaches FWA sees fit.

(2)    Schedule 5, item 2, page 58 (after line 23), at the end of subitem (5), add:

   ; and (c)    the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.

This is an alternative approach to the amendment moved by Senator Abetz in relation to the no detriment rule. I could not support that amendment because taking a global approach would seem to be too broad and could lead to consequences where workers would be worse off.

The first amendment is an approach giving Fair Work Australia the power to compare entitlements in dispute on a line-by-line basis—which compares individual terms, and is the approach of the government—or, alternatively, on a like-by-like basis, comparing entitlements according to particular subject areas or, thirdly, using any combination of the above approaches that Fair Work Australia sees fit. This amendment seeks to enable Fair Work Australia to use its discretion to ensure that the rights of both employers and employees are protected when entitlements are in dispute.

Whilst I do not support the coalition’s amendment, I believe that the coalition did highlight an area of uncertainty. I think the example given by Senator Abetz related to public holidays and situations like the instance given by Mr Keenan in a very useful briefing I had with him: there is a hospital in Perth where the nursing staff traded their public holiday entitlements for something like two weeks additional leave. That was something that the workforce in that particular workplace was quite happy with, and it gave a degree of flexibility for both the employer and the employees. So there is a concern in relation to the doubling up that may occur on a line-by-line approach.

This is a particular area of uncertainty in relation to leave. I believe that having a like-by-like approach gives that degree of flexibility to avoid those sorts of circumstances. As I understand it, the coalition has pointed to a Chamber of Commerce and Industry Western Australia submission to the Senate inquiry which details how this situation could occur if a line-by-line approach were adopted by the Western Australian health sector. I believe the global approach is the wrong approach—it is simply too broad. A like-by-like approach, in essence, groups similar subjects, such as leave, and enables comparisons to be made to ensure that employees are either equal to or better off under the NES so that there is still a firm no detriment approach.

This would not undermine the foundation of the NES. There is flexibility to ensure that packages of conditions are maintained with a like-by-like approach. This adopts the legislation’s better off overall tests across the entirety of one’s entitlements, but applies it to ensure that someone is better off within a set of entitlements. Further, should there be any difficulty in taking this approach then Fair Work Australia is empowered to use the best approach for the particular situation. It has that flexibility and, far from telling the independent umpire how it should act, this amendment guides Fair Work Australia and provides it with greater flexibility to achieve outcomes that balance employer/employee entitlements without any detriment to the employees.

That is the essence of it. I am grateful for the discussions I have had with both the coalition and with the government this evening in relation to that. I look forward to the response of my colleagues, including my cross-bench colleagues, in relation to this. I hope my colleagues can understand the basis upon which I have moved this: I am concerned that there could be anomalies under the current line-by-line approach. Like-for-like gives a greater degree of flexibility without undermining the essence of what is intended in the legislation for a no detriment rule.