Sarah Hanson-Young (SA, Australian Greens) Share this | Hansard source

As the Greens had a very similar amendment, which was withdrawn subsequent to the government putting theirs forward, we are happy to see this legislative review included.

Question agreed to.

by leave—I move Greens amendments (13) and (14) on sheet 6111:

(13)  Page 236 (after line 25), after clause 308, insert:

309  Schedule(s)

                 Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

(14)  Page 236 (after line 25), at the end of the bill, add:

Schedule 1—Amendments relating to paid parental leave

Fair Work Act 2009

1  Subsection 67(1)

Omit “An”, substitute “Subject to section 67A, an”.

2  Subsection 67(2)

Omit “A”, substitute “Subject to section 67A, a”.

3  After section 67

Insert:

67A  Additional application—paid parental leave

        (1)    This section applies in relation to an employee if:

             (a)    the Secretary makes a determination under Part 2-2 of the Paid Parental Leave Act 2010 that parental leave pay is payable to the employee for a child; and

             (b)    at the time the Secretary makes that determination, the employee does not meet the requirements of subsection 67(1) or (2); and

             (c)    the employee has, or will have, completed at least 3 months of continuous service with the employer immediately before the day the Secretary makes the determination.

        (2)    The employee is entitled to leave under this Division.

Note:   An employee qualifying under this section is entitled to leave during the employee’s PPL period for the child (see section 70A).

        (3)    In this section, unless the contrary intention appears, any term that is defined in the Paid Parental Leave Act 2010 has the meaning given in that Act.

4  Section 70

Omit “An”, substitute, “Subject to section 70A, an”.

5  After section 70

Insert:

70A  Modified application—entitlement to paid parental leave

        (1)    This section applies to an employee who is entitled to leave under this Division because of section 67A.

        (2)    The employee is entitled to:

             (a)    unpaid parental leave during the employee’s PPL period for the child; and

             (b)    if the leave is associated with the birth of a child—an additional period of unpaid parental leave of up to 6 weeks before the birth.

        (3)    In this section, unless the contrary intention appears, any term that is defined in the Paid Parental Leave Act 2010 has the meaning given in that Act.

These amendments are quite significant. They deal with a significant flaw in this entire legislation, which is that this is a stand-alone piece of legislation. It does not amend the Fair Work Act, which contains the unpaid maternity leave provisions. The government themselves, through both their advisers and the secretary of the department, have acknowledged that, yes, this piece of legislation is simply an entitlement to a payment, not necessarily an entitlement to leave. That is because the maternity leave provisions are held within the Fair Work Act. This bill as it stands does not amend that.

Some women—I hope most women—would be entitled to the payment on the criteria set out in this legislation, which would marry with their eligibility for entitlement to unpaid leave in the Fair Work Act, but there would be some women who would not be. That is because the entitlements for the payment are different to the existing entitlements for leave in the Fair Work Act. It is going to be very difficult for the government to continue to argue that this is a paid parental leave scheme, rather than simply a payment for parents who happen to have to leave their job but are not necessarily given a guarantee that they will get their job back. It is very hard for the government to argue that this is anything more than a payment for parents as opposed to a paid parental leave scheme that is based on a foundation of workplace attachment, of workforce participation of women in particular, and of ensuring that it is a workplace entitlement. The minister himself—in response to some of the comments, whether they are relevant or not, made by Senator Boswell—indicated that this piece of legislation, this scheme, is all about a workplace entitlement. Yes, it should be about a workplace entitlement. Unfortunately, though, because of the way that the bill is drafted—it does not amend the Fair Work Act—it is not a workplace entitlement. You can say it is, but it is not. There is an entitlement to a payment; there is not an entitlement to leave.

It astounds me, to be honest, that the government were not forward thinking enough to be able to say, ‘Look, we are so committed to a paid parental leave scheme, we will put forward a bill that will amend the Fair Work Act to ensure that the entitlements marry with each other.’ So you are not just introducing a social welfare benefit; you are introducing a workplace entitlement. You are not just dressing up the baby bonus but implementing a proper paid parental leave scheme. One of the issues that has been raised in this debate since the moment the government put forward their exposure draft of the bill is that this is a very complex piece of legislation. The attitude is: ‘We can’t play with bits of it because it is so complex. Let’s just ram it through the parliament.’ We have seen that the parliamentary process, and the Senate process in particular, has been able to articulate that there are flaws. We have been able to fix some of them, but this is a major one that we have not yet been able to fix. That is why this amendment is on the table.

If they had indeed simply put forward a piece of legislation that amended the Fair Work Act and included payment for the existing leave entitlements for parents then it would have been a much simpler act to deal with. The piece of legislation that was tabled last year by me on behalf of the Greens amended the Fair Work Act. It was not the 200-odd pages that the government’s bill is; it was not as complex. It was upfront about the fact that this paid parental leave scheme should be a workplace entitlement. To make that the case, we must amend the Fair Work Act. Otherwise, it is all show with no substance behind it—aside from the payment, which I accept. A paid parental leave scheme needs to ease the burden on families and on mums in particular who have to leave the workforce in order to have their babies. It needs to allow, help and support them to do that. But a paid parental leave scheme needs to ensure that they are not discriminated against or disadvantaged in the workplace because they have to take time off work in order to look after and care for their newborn baby.

We need to amend the Fair Work Act and ensure that there is a marrying of the eligibility criteria for those who are entitled to payment and those who are entitled to leave. Those women who the government rightly suggests do not generally have access to any employer funded scheme—casuals, seasonal workers and those in lower paid income brackets—are women who do not necessarily fit into the unpaid leave provisions. While they will be able to access the payment, they are not guaranteed of getting their job back. It will be up to the employer and whether or not they have the goodwill to say, ‘That’s okay: we’ll give you that time off and you can come back.’ That is not a good foundation for government policy: ‘She’ll be right, mate. The boss’ll look after you.’ I cannot believe that that is the type of approach that is coming from the Labor Party, but that is the approach in this legislation: ‘She’ll be right, mate. The boss’ll look after you.’ They are not guaranteeing in the piece of legislation that is before us today that all parents who are eligible for the payment will be eligible to get their job back once their leave period is over. It is a fundamental flaw in the legislation. It is tricky to clean up. Nonetheless, the Greens amendments try to do that.

I would like to see the government’s response to this. If they are indeed committed to the idea of expanding this scheme—if they are indeed committed to including superannuation and extending the length of time—how are they going to do that if they do not bed down a scheme that is about a workplace entitlement and not just another form of the baby bonus?