Mary Fisher (SA, Liberal Party) Share this | Hansard source

They do indeed, Senator Abetz. This amendment is to ensure that the government, through its legislation, has a transparent plan and that the Industrial Relations Commission will be required to deliver on it. How this amendment will achieve that is quite simple. The factors listed in the amendment and the factors to justify the variation of award modernisation request are the very factors listed by the Deputy Prime Minister in her letter to the President of the Australian Industrial Relations Commission of 28 May. Those are the very factors that she considers, on her own say-so, justify special treatment of the restaurant and catering sector. Other industries have the same. The government knows they deserve the same. This amendment is about requiring the commission to deliver them the same. It does that by going one step further than the Deputy Prime Minister’s letter in respect of the restaurant and catering sector and one step further than the Deputy Prime Minister’s variation of her award modernisation request.

The Deputy Prime Minister would have us believe that for the restaurant and catering sector—according to her covering letter—she has amended her request to require the commission to create a separate modern award for the restaurant and catering industry. The fine print of the administrative direction, the variation of award modernisation request—as it is so beautifully called—says:

The Commission should create a modern award covering the restaurant and catering—

sector. The covering letter has the Deputy Prime Minister saying that she is amending her request to require the commission to create a separate modern award, yet the very request says:

The Commission should create a modern award …

One would have thought the commission would not be so unwise as to not create a separate modern award for the restaurant and catering sector, but there is more. She goes on to say that she is amending her request to:

… clarify the government’s intention that the award modernisation process should take account of the specific operational requirements of the restaurant and catering industry.

Specifically, she says:

My request now requires the commission to establish a penalty rate and overtime rate that appropriately recognises the restaurant and catering industry’s core trading times and the labour intensive nature of work in the industry.

That is in reference to her request, and she now uses the word ‘requires’. Her request says:

The development of such a modern award should establish a penalty rate and overtime regime that takes account of operational requirements—

et cetera. Her letter says ‘require’; her direction says ‘should’. ‘Should’ is not ‘must’. ‘Should’ is no guarantee that there will be this outcome. The opposition’s amendment appropriately provides:

If the Minister has made or varied—

her administrative direction in respect of a industry for—

any of the factors—

listed in the amendment—

the Minister must also make or vary an award modernisation request ordering the Commission to create a modern award to accommodate every other industry in which … those factors exist.

This should be no surprise to the government because, as the esteemed Professor Ron McCallum has publicly pointed out to the government:

In the modernising process, it’s the minister that has the power to direct …

It was reported that he said:

Ms Gillard now had extraordinary powers and was using them more than he had expected.

He said:

… this modernising process gives the power to the minister to order the commission to do things.

This amendment will allow her, in appropriate circumstances, to require the commission to do things where appropriate—that is, because a particular industry deserves special treatment because of special factors that they share in common with the very industry, the restaurant and catering sector, that Ms Gillard has already considered appropriate for some form of protection from the brunt of her award overhaul. The opposition urges the Senate to support this amendment. Minister, I look forward to your answer to my question.