Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Hansard source

If that is the case, I will commence with the first set of amendments and, in doing so, will make some general remarks which will cover essentially all of the government's amendments. We can revisit in further detail as we go along, if Senator Abetz is happy with that approach.

The TEMPORARY CHAIRMAN: So leave is sought?

Yes.

Leave granted.

I move government amendments (1), (3) to (10), (13), (15) and (16) together:

(1) Schedule 1, item 1, page 4 (lines 2 and 3), omit "means a national system employee, and employer means a national system employer", substitute "and employer have their ordinary meanings".

(3) Schedule 1, item 1, page 7 (lines 7 to 20), omit subsection 768AI(1), substitute:

(1) If, immediately before the termination time of a transferring employee:

  (a) a State award (the original State award) was in operation under the State industrial law of the State; and

  (b) the original State award covered (however described in the original State award or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State award also covered other persons);

then a copied State award for the transferring employee is taken to come into operation immediately after the termination time.

(4) Schedule 1, item 1, page 8 (line 21) to page 9 (line 3), omit subsection 768AK(1), substitute:

(1) If, immediately before the termination time of a transferring employee:

  (a) a State employment agreement (the original State agreement) was in operation under a State industrial law of the State; and

  (b) the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons);

then a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time.

(5) Schedule 1, item 1, page 20 (before line 8), before subsection 768AX(1), insert:

Application of this section

  (1A) This section applies if there is, or is likely to be, a transfer of business.

(6) Schedule 1, item 1, page 20 (line 31) to page 21 (line 34), omit subsections 768AX(2) and (3), substitute:

Who may apply for a variation

(2) FWA may make a variation under subsection (1):

  (a) on its own initiative; or

  (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or

  (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.

     Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non transferring employee if a consolidation order is made.

Matters that FWA must take into account

(3) In deciding whether to make a variation under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the copied State instrument as varied; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;

  (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation;

  (f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

  (g) the public interest.

(7) Schedule 1, item 1, page 22 (lines 15 to 20), omit subsection 768AX(6), substitute:

When variation may be made

(6) A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee:

  (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

  (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Restriction on when variation may come into operation

(7) A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.

(8) Schedule 1, item 1, page 23 (after line 13), after section 768AZ, insert:

768AZA Orders in relation to a transfer of business

  (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

  (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:

     (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

     (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

(9) Schedule 1, item 1, page 23 (line 27) to page 24 (line 30), omit subsections 768BA(2), (3) and (4), substitute:

Who may apply for an order

(2) FWA may make an order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a transferring employee or an employee who is likely to be a transferring employee;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

     (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

(3) In deciding whether to make an order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;

  (f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

  (a) the transferring employee's re employment time;

  (b) the day on which the order is made.

(10) Schedule 1, item 1, page 25 (line 17) to page 30 (line 15), omit Division 7, substitute:

Division 7—FWA orders about consolidating copied State instruments etc.

Subdivision A—Guide to this Division

768BC What this Division is about

This Division allows FWA to consolidate the various workplace instruments that may apply in the new employer's workplace. It achieves this by allowing FWA to make an order that a copied State instrument for a particular transferring employee is also a copied State instrument for one or more other transferring employees or non transferring employees.

Subdivision B deals with consolidating copied State instruments for transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for a transferring employee ("employee A") is also the copied State instrument for one or more other transferring employees. If FWA makes a consolidation order for those other transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those other transferring employees (see section 768BF).

Subdivision C deals with non transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for employee A (who is a transferring employee) is also the copied State instrument for one or more non transferring employees. If FWA makes a consolidation order for those non transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those non transferring employees (see section 768BI).

768BCA Orders in relation to a transfer of business

(1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

(2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:

  (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

  (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Subdivision B—Consolidation orders in relation to transferring employees

768BD Consolidation orders in relation to transferring employees

Consolidation order

(1) FWA may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) is also a copied State instrument for one or more other transferring employees.

Who may apply for order

(2) FWA may make a consolidation order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a transferring employee, or an employee who is likely to be a transferring employee;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i).

Matters that FWA must take into account

(3) In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage if the order were not made;

  (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(4) A consolidation order under subsection (1) must not come into operation in relation to a particular transferring employee (other than employee A) before the later of the following:

  (a) the transferring employee's re employment time;

  (b) the day on which the order is made.

768BE Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BD(1) must specify when the copied State instrument for employee A applies to, and covers:

  (a) another transferring employee; and

  (b) the new employer in relation to the other transferring employee; and

  (c) an employee organisation in relation to the other transferring employee;

which must not be before the other transferring employee's re employment time.

(2) Once the consolidation order comes into operation in relation to the other transferring employee, the copied State instrument for the other transferring employee ceases to operate.

768BF Effect of this Act after a consolidation order is made

  If FWA makes a consolidation order under subsection 768BD(1), then this Act has effect in relation to a particular transferring employee (other than employee A), from the time the order comes into operation in relation to that employee, as if a reference in relation to that employee to the copied State instrument for that employee were a reference to the copied State instrument for employee A.

Subdivision C—Consolidation orders in relation to non transferring employees

768BG Consolidation orders in relation to non transferring employees

Consolidation order

(1) FWA may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) also is, or will be, a copied State instrument for one or more non transferring employees who perform, or are likely to perform, the transferring work.

Non transferring employees

(2) A non transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.

Who may apply for order

(3) FWA may make a consolidation order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a non transferring employee who performs, or is likely to perform, the transferring work;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

     (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

(4) In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage if the order were not made;

  (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(5) A consolidation order under subsection (1) must not come into operation in relation to a particular non transferring employee before the later of the following:

  (a) the time when the non transferring employee starts to perform the transferring work for the new employer;

  (b) the day on which the order is made.

768BH Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BG(1) must specify when the copied State instrument for employee A applies to, and covers:

  (a) a non transferring employee; and

  (b) the new employer in relation to the non transferring employee; and

     (c) an employee organisation in relation to the non transferring employee;

in relation to the transferring work.

(2) If an enterprise agreement covers the non transferring employee and the new employer, the order must also specify that the agreement does not cover:

  (a) the non transferring employee; or

  (b) the new employer in relation to the non transferring employee; or

  (c) an employee organisation in relation to the non transferring employee;

in relation to that work.

768BI Effect of this Act after a consolidation order is made

  If FWA makes a consolidation order under subsection 768BG(1), then this Act has effect in relation to a particular non transferring employee, from the time the order comes into operation in relation to that employee, as if:

     (a) the copied State instrument for employee A were also the copied State instrument for that employee; and

     (b) that employee were a transferring employee in relation to that copied State instrument.

(13) Schedule 1, items 14 and 15, page 48 (line 22) to page 49 (line 2), omit the items.

(15) Schedule 1, item 24, page 50 (line 12), omit "subparagraph 768AK(1)(b)(i)", substitute "paragraph 768AK(1)(a)".

(16) Schedule 1, item 25, page 50 (line 16), omit "subparagraph 768AI(1)(b)(i)", substitute "paragraph 768AI(1)(a)".

As foreshadowed, the government proposes a number of minor amendments to the bill. It is the government's intent that, through this bill, existing transfer of business protections are provided to certain former state public servants moving into the national workplace relations system through a transfer of business scenario. These amendments are therefore designed to better and more clearly align the bill with the existing transfer of business provisions in the Fair Work Act.

The first category of amendments relates to orders that Fair Work Australia can make in relation to transfer of business—that is, amendments (1), (3) to (10), (13), (15) and (16). The government proposes these amendments to ensure that Fair Work Australia can hear applications and make orders in anticipation of there being a transfer of business. These amendments are designed to improve consistency with similar provisions in part 2-8 of the Fair Work Act. These amendments will enable new employers to enter into commercial transactions with greater certainty and to more effectively make preparations for a smooth transition at the new workplace in advance of the transfer of business occurring.

Amendments (9) and (10) will, among other things, ensure that consolidation orders and orders about employee coverage made by Fair Work Australia cannot have retrospective operation. These amendments will more closely align with similar provisions in part 2-8 of the Fair Work Act. Amendment (10) will also make it clear that Fair Work Australia can make orders relating to multiple employees rather than being required to make one order per employee. This approach is consistent with part 2-8 of the Fair Work Act.

The second category of amendments relates to the application and coverage of the bill. These are amendments (14), (17) and (18). These amendments will further clarify that the coverage of this bill extends to certain former state public sector employees only but does not extend to local government employees. These amendments reflect the intended coverage and application of the bill, as announced by the minister.

The third category of amendments, amendment (19), also clarifies the operation of the bill in relation to ensuring that the same rules that currently apply to transfers of business under the Fair Work Act in relation to the operation of the general protections provision also apply to transfers of business under the new proposed provisions in this bill. The final category of amendments deals with amendments of a minor, technical or consequential nature—that is, amendments (2), (11), (12), (20) and (21)—such as cross-references and numbering under the bill.