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

I say to Senator Abetz that I do not think that the late Frank Crean was taken in context in the quote he just used, and certainly he would never have allowed it to be used that way, so I think it is probably best that we resist going any further there. I will just say, to try and allay some of the fears of Senator Xenophon, that subitem 26 is intended to be a flexible power. In this case, it would be open to 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. We are obviously talking about the public holiday example here. Subitem 26 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.

Coming to this situation, an application could be made to vary an agreement-based transitional instrument 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 a substitute for public holidays. This is already available right now in 26(1).

Another example of where item 26(1) could be used to resolve a difficulty is that if an agreement provides for an extra number of personal leave days that can be used to undertake community service duties then Fair Work Australia could amend the agreement to make it clear that the two entitlements are not cumulative. Other NES conditions have an in-built flexibility. An example we talked about is that annual leave can be cashed out. Also, you can agree to substitute another day for a public holiday. Again, any difficulty can be resolved by Fair Work Australia.

So, Senator Xenophon, obviously we have tried to work cooperatively, and I thank you for the assistance you have given us with these amendments, but unfortunately we cannot agree to them tonight. We believe that we have the balance right in terms of the NES. We do not want to further complicate the system, which I believe your amendments do.