Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

by leave—I move opposition amendments (4) and (7) to (13) on sheet 7305 together:

(4) Schedule 8, item 5, page 44 (lines 15 and 16),

(7) Schedule 8, item 57, page 54 (line 6), omit "paragraph 581A(1)(a)", substitute "subsection 581A(1)".

(8) Schedule 8, item 62, page 55 (lines 22 to 30), omit subsection 581A(1), substitute:

(1) Without limiting section 581 (which deals with the functions of the President), the President may, in accordance with subsection (2) of this section, deal with a complaint about the performance by another FWC Member of his or her duties.

(9) Schedule 8, item 62, page 56 (line 2), omit "paragraph (1)(a)", substitute "subsection (1)".

(10) Schedule 8, item 62, page 56 (line 27), omit "paragraph (1)(a)", substitute "subsection (1)".

(11) Schedule 8, item 62, page 56 (line 35), omit "paragraph (1)(a)", substitute "subsection (1)".

(12) Schedule 8, item 63, page 57 (lines 20 to 23),

(13) Schedule 8, item 64, page 57 (line 31), omit "paragraph 581A(1)(a), subsections 581A(2)", substitute "subsections 581A(1)".

(14) Schedule 11, item 21, page 184 (lines 13 to 16),

(15) Page 191 (after line 8), at the end of the Bill, add:

Schedule 12—Australian Workplace Relations Commission

Part 1—Amendments

Fair Work Act 2009

1 The whole of the Act

  Omit "Fair Work Commission" (wherever occurring), substitute "Australian Workplace Relations Commission".

2 The whole of the Act

  Omit "FWC" (wherever occurring), substitute "AWRC".

3 The whole of the Act

  Omit "FWC's" (wherever occurring), substitute "AWRC's".

Part 2—Transitional and consequential provisions

4 Regulations may deal with transitional etc. matters

(1) The Governor General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) In this item:

amendments made by this Schedule includes amendments made by regulations under item 5 of this Schedule.

5 Regulations may make consequential amendments of Acts

(1) The Governor General may make regulations amending Acts (including the Fair Work Act 2009) being amendments that are consequential on, or that otherwise relate to, the amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) Amendments of an Act made by regulations for the purposes of this item can be incorporated into a reprint or compilation of the Act as provided by the Acts Publication Act 1905.

The coalition strongly believes in a strong and independent commission, and it is vital that the Australian people have confidence in Fair Work Australia. These amendments will ensure that the president's powers are not so broad as would provide him with an open remit to penalise people as he sees fit. I do not believe that is necessarily good within any workplace, let alone a workplace such as Fair Work Australia. Regrettably, we do know that there is some disharmony, to put it mildly, at the top of Fair Work Australia. That disharmony received public attention when the President of Fair Work Australia made some observations—I will once again use diplomatic language—about Vice President Graeme Watson's speech in recent times.

Mr Ross told us at Senate estimates that he had 'expressed concern' to the vice president following his speech, in which he expressed concern about the operation of the Fair Work Act and its review.

In July of this year Mr Ross then released a code of conduct which some people interpreted as a thin-veiled attack on Mr Watson. The Australian Financial Review said this code of conduct:

… reads disturbingly like an effort to enforce group-think on his subordinate commissioners.

Under the section headed 'Participation in the public debate', Mr Ross's code directs members to avoid involvement in political controversy when engaging in public debate and carefully consider how they express their views, as they may lead to the perception of bias. The quote goes on:

Other members may hold different views on contentious issues, and may wish to respond accordingly, possibly giving rise to a public conflict between members, which may bring the tribunal into disrepute or could diminish the authority of the tribunal.

Despite all of this, Mr Ross has provided separate advice that:

The President speaks on behalf of the tribunal and its members.

In other words, it is Mr Ross's view that will prevail and no other commissioner will be entitled to express his or her view that may not necessarily 100 per cent align with the president's view. I am not sure that that is healthy for any tribunal or indeed any court. The fact that they should resist involvement in public controversy is, of course, accepted wisdom. But if the president can do so, one wonders why deputy presidents and others cannot do so. What is difficult to swallow by some is that on the very day that Mr Ross appeared at Senate estimates, saying that it was inappropriate for Fair Work Australia tribunal members to 'enter the public debate about such issues', he appeared on the ABC 7.30 program to answer questions about Fair Work Australia's involvement in the investigation into Craig Thomson, despite saying that he had no responsibility for it.

The coalition does have some concerns in relation to what the government is proposing. I understand that the normal practice for tribunals is as is currently in the legislation. Without going into too much detail, what the government is seeking to do is to delete provisions of the existing Fair Work Act and give the president, quite frankly, unprecedented powers. At the moment a Fair Work Commissioner must, under section 640, disclose a potential conflict to the president. I should be starting at 643—Termination for appointment for bankruptcy et cetera. Section 643 reads as follows:

The Governor-General must terminate the appointment of an FWA member if—

then we go down to (c):

(c) the FWA member fails without reasonable excuse to comply with section 640.

Now allow me to go back to section 640 where the member, therefore, without reasonable excuse, does not disclose a potential conflict of interest to the president. If that conflict of interest is disclosed to the president then the commissioner can only deal with it with the president's approval, but the president must give a direction to the Fair Work member not to deal or to no longer deal with a matter if, and then those circumstances are set out. The government is basically seeking to delete a number of those aspects and simply replace it with the suggestion that the Fair Work Commission member must disclose the potential conflict to (a) a person who has made or will make a submission, and to the president, and that there are then no follow-on consequences.

We believe that if a Fair Work commissioner fails to disclose and behave as is currently required under section 643 then termination should take place. There is, of course, the get out, where that failure is without reasonable excuse; so there is that protection for an FWA member. But if they are without reasonable excuse and behaving in a particular manner then the Governor-General must terminate their appointment.

The government is now proposing that the president, basically in his full discretion, will be able to deal with that particular matter. It seems to the coalition that it is unhealthy that so much power should reside with the president of Fair Work Australia. I have also indicated in my other comments that we believe that the powers of the president will be too great, and that it will not be conducive to a healthy, robust Fair Work Australia, where different commissioners might actually be able to hold some differing views and give expression to their differing views—of course, within the bounds of appropriate expression.

I might say that we have that from High Court judges, who from time to time give speeches. I can think of speeches by Justice Kirby where the chances are I would not agree with much at all, yet with former Justice Ian Callinan giving speeches the chances are that I would have agreed with most of what he said. These people sat on the High Court together and the High Court did not fall into disrepute because of it. They were entitled to express differing views. Just imagine if today a High Court judge could not give a speech without Chief Justice French giving his imprimatur. I think that would diminish the High Court and, whilst Fair Work Australia is in no way to be equated with the High Court, being only a quasi-judicial body, it is nevertheless a similar principle that should apply, that there should be that freedom and that we should not have such an oppressive regime being foisted on Fair Work Australia commissioners.

I commend the amendments to the Senate.