Janet Rice (Victoria, Australian Greens) Share this | Hansard source

by leave—I move Greens amendments on sheets 7560 and 7554:

(1) Clause 2, page 2 (table items 2 to 9), omit the items, substitute:

(2) Schedule 1, page 4 (line 1) to page 28 (line 24), omit the Schedule, substitute:

Schedule 1—Amendments

Fair Work Act 2009

1 After paragraph 5(8)(a)

  Insert:

     (aa) provided by a secure employment order (see Part 2-7A); and

2 Section 12

  Insert:

     rolling contract basis: see section 21A.

3 Section 12

  Insert:

     rolling contract employee: see section 21A.

4 Section 12

  Insert:

     secure employment arrangement means ongoing employment on a part-time or full-time basis.

5 Section 12

  Insert:

     secure employment order: see subsection 306E(1).

6 Section 12

  Insert:

     small business exempt casual employee: a casual employee is a small business exempt casual employee if:

        (a) the employer is a small business employer; and

        (b) the employee is not a long term casual employee.

7 After section 21

  Insert:

21A Meaning of rolling contract employee and rolling contract basis

  (1) An employee who is employed on a rolling contract basis is a rolling contract employee.

  (2) An employee is employed by an employer on a rolling contract basis if:

     (a) the contract of employment ends on a specified date or at the end of a specified period; and

     (b) the employee has previously been employed by the employer under such a contract; and

     (c) the current and previous contracts relate to the same kind of work.

  (3) For the purposes of paragraph (2)(a), a contract may end on a specified date or at the end of a specified period even if a term of the contract has the effect that the contract might be terminated before that date or before the end of that period.

8 After subparagraph 43(2)(a)(i)

  Insert:

     (ia) a secure employment order (see Part 2-7A); or

9 After paragraph 172(1)(c)

  Insert:

     (ca) matters pertaining to secure employment arrangements, including moving from casual employment, or from employment on a rolling contract basis, to secure employment arrangements;

10 After Part 2 -7

  Insert:

Part 2 -7A—Secure employment arrangements

Division 1—Introduction

306A Guide to this Part

This Part provides for transition to, and maintenance of, secure employment arrangements.

Division 1 deals with preliminary matters.

Division 2 deals with requests for secure employment arrangements. These include the following:

  (a) requests to change from casual employment to secure employment arrangements;

  (b) requests to change from employment on a rolling contract basis to secure employment arrangements.

Division 3 provides for the making of secure employment orders by FWC for employees or prospective employees.

306B Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Requests for secure employment arrangements

306C Requests to change from casual employment to secure employment arrangements

  (1) A casual employee may request the employer, in writing, for a secure employment arrangement.

  (2) An employee organisation that is entitled to represent casual employees may, if asked to do so by one or more of the employees, request the employer, in writing, for a secure employment arrangement for that employee or those employees.

  (3) The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request.

  (4) If the employer refuses the request, the employer's written response must include details of the reasons for the refusal.

  (5) This section does not apply in relation to a small business exempt casual employee.

306D Requests to change from employment on rolling contract basis to secure employment arrangements

  (1) A rolling contract employee may request the employer, in writing, for a secure employment arrangement.

  (2) An employee organisation that is entitled to represent rolling contract employees may, if asked to do so by one or more of the employees, request the employer, in writing, for a secure employment arrangement for that employee or those employees.

  (3) The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request.

  (4) If the employer refuses the request, the employer's written response must include details of the reasons for the refusal.

Division 3—Secure employment orders

306E FWC may make secure employment order

  (1) FWC may, on application in accordance with section 306F, make any order (a secure employment order) it considers appropriate to provide, or to maintain, secure employment arrangements for the person or persons to whom the order will apply.

  (2) A secure employment order may apply to:

     (a) any one of the following persons (a relevant person):

        (i) a casual employee;

        (ii) a rolling contract employee;

        (iii) a prospective employee who, if employed at the time the application for the order was made, would be a casual employee or rolling contract employee;

        (iv) an employee who already has a secure employment arrangement;

        (v) a prospective employee who, if employed at the time the application for the order was made, would have a secure employment arrangement; or

     (b) two or more relevant persons; or

     (c) a class of relevant persons.

  (3) Without limiting paragraph (2)(c), the class may be described by reference to one or more of the following:

     (a) a particular industry or part of an industry;

     (b) a particular kind of work;

     (c) a particular type of employment;

     (d) a particular employer.

  (4) A secure employment order must specify the employer or employers who are required to comply with the order, being the employer or employers of the relevant person, relevant persons or class of relevant persons to whom the order applies.

  (5) Despite subsection (2), a secure employment order cannot apply to a small business exempt casual employee.

306F Application for secure employment order

  (1) Application for a secure employment order in relation to a request refused under section 306C or 306D may be made by:

     (a) if the employee made the request—any of the following:

        (i) the employee;

        (ii) an organisation that is entitled to represent the interests of the employee, if asked by the employee to make the application;

        (iii) the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner; or

     (b) if an organisation made the request—the organisation.

  (2) Application for a secure employment order otherwise than in relation to a request refused under section 306C or 306D may be made by:

     (a) an organisation that is (or, for prospective employees, that would be) entitled to represent the interests of the relevant person, relevant persons or class of relevant persons to whom the order will apply; or

     (b) an employer organisation that is entitled to represent the industrial interests of an employer of a relevant person, relevant persons or class of relevant persons to whom the order will apply.

306G Matters for FWC to consider

  In deciding whether, or the terms on which, to make a secure employment order, FWC must have regard to the following:

     (a) the needs of employees to have secure jobs and stable employment;

     (b) an employer's capacity to use arrangements that are not secure employment arrangements in cases where this is genuinely appropriate having regard to the needs of the business;

     (c) the size of the employer or employers to whom the order will apply;

     (d) if the application was made under subsection 306F(2)—whether the order should apply to the same employees and prospective employees, and require the same employers to comply with it, as are covered by a relevant modern award;

     (e) any other matter FWC considers relevant.

306H Content of orders affecting more than one person

  (1) Orders providing or maintaining secure employment arrangements for more than one relevant person may include one or more of the following:

     (a) an order requiring that all the relevant persons who are long term casual employees be offered a secure employment arrangement;

     (b) an order providing for a process by which all the relevant persons who have been employed by the employer for a certain period of time can elect to have a secure employment arrangement;

     (c) an order specifying the terms of secure employment arrangements under which casual loadings would be phased out over a period of time so as to avoid a sharp drop in employee remuneration;

     (d) an order implementing secure employment arrangements in such stages (as provided in the order) as FWC thinks appropriate;

     (e) an order requiring the employer to provide information to FWC for the purposes of monitoring the staged implementation of secure employment arrangements;

     (f) an order regulating the engagement of prospective employees on a casual basis, a rolling contract basis or a secure employment basis;

     (g) an order regulating the employer's use of arrangements that are not secure work arrangements in circumstances in which secure work arrangements could be used.

  (2) Subsection (1) does not limit the orders that FWC may make under this section.

306J Implementation of secure employment order in stages

  A secure employment order may provide for secure employment arrangements in such stages as FWC thinks appropriate.

306K Contravening a secure employment order

  An employer must not contravene a secure employment order.

Note: This section is a civil remedy provision (see Part 4-1).

306L Inconsistency with modern awards and enterprise agreements

  A term of a modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a secure employment order that applies to the employee.

11 Subsection 539(2) (after table item 9)

  Insert:

12 After paragraph 557(2)(f)

  Insert:

     (fa) section 306K (which deals with contraventions of working arrangements orders);

13 After paragraph 576(1)(f)

  Insert:

     (fa) secure employment arrangements (Part 2-7A);

14 After paragraph 653(1)(c)

  Insert:

     (ca) conduct research into the operation of Part 2-7A in relation to requests for secure employment arrangements; and

15 Subparagraph 653(1)(d)(i)

  Repeal the subparagraph, substitute:

     (i) the circumstances in which such requests are made; and

16 After paragraph 675(2)(e)

  Insert:

     (ea) a secure employment order;

17 At the end of subsection 716(1)

  Add:

     ; (g) a term of a secure employment order.

  (3) Schedule 2, page 29 (line 1) to page 32 (line 18), to be opposed.

(1) Clause 2, page 2 (at the end of the table), add:

(2) Page 32 (after line 18), at the end of the Bill, add:

Schedule 3—Better work/life balance

Fair Work Act 2009

1 Before paragraph 5(8)(b)

  Insert:

     (ba) provided by a flexible working arrangementsorder (see Part 2-7B); and

2 Section 12

  Insert:

     flexible working arrangements order: see subsection 306S(1).

3 Before subparagraph 43(2)(a)(ii)

  Insert:

     (ib) a flexible working arrangements order (see Part 2-7B); or

4 Subsection 44(2)

  Omit "65(5) or".

5 Subsection 44(2) (note 1)

  Repeal the note, substitute:

     Note 1: Subsection 76(4) states that an employer may refuse an application to extend unpaid parental leave only on reasonable business grounds.

6 Subsection 44(2) (note 2)

  Omit "65(5) or".

7 Division 4 of Part 2 -2

  Repeal the Division.

8 Section 146 (note)

  Omit "65(5) or".

9 Before paragraph 172(1)(d)

  Insert:

     (cb) matters pertaining to flexible working arrangements;

10 Subsection 186(6) (notes 1 and 2)

  Omit "65(5) or".

11 Before Part 2 -8

  Insert:

Part 2 -7B—Flexible working arrangements

Division 1—Introduction

306M Guide to this Part

This Part provides processes for changing working arrangements.

Division 1 deals with preliminary matters.

Division 2 deals with requests for flexible working arrangements, including flexible working arrangements for employees who are carers.

Division 3 provides for the making of flexible working arrangements orders by FWC to ensure that employers comply with this Part.

306N Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

306P State and Territory laws that are not excluded

  (1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Part.

  (2) However, a law of a State or Territory has no effect in relation to an employee to the extent that it provides an employee entitlement in relation to flexible working arrangements that is inconsistent with a term of an enterprise agreement that applies to the employee.

Division 2—Requests for flexible working arrangements

306Q Requests for flexible working arrangements

Employee or organisation may request change

  (1) An employee, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee's working arrangements.

     Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

  (2) Neither the employee, nor the organisation, is entitled to make the request unless:

     (a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

     (b) for a casual employee—the employee:

        (i) is a long term casual employee of the employer immediately before making the request; and

        (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

  (3) The request must:

     (a) be in writing; and

     (b) set out details of the change sought and of the reasons for the change.

Responding to the request

  (4) The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

  (5) The employer may refuse the request only on reasonable business grounds.

  (6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

306R Requests for flexible working arrangements—carers

Request for change for employee who is a carer

  (1) An employee who has responsibility for the care of another person, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee's working arrangements to assist the employee to care for the other person.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

  (2) Neither the employee, nor the organisation, is entitled to make the request unless:

     (a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

     (b) for a casual employee—the employee:

        (i) is a long term casual employee of the employer immediately before making the request; and

        (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

Formal requirements

  (3) The request must:

     (a) be in writing; and

     (b) set out details of the change sought and of the reasons for the change.

Responding to the request

  (4) The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

  (5) The employer may refuse the request only on serious countervailing business grounds.

  (6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

Division 3—Flexible working arrangements orders

306S FWC may make flexible working arrangements order

Power to make flexible working arrangements order

  (1) FWC may make any order (the flexible working arrangements order) it considers appropriate to ensure that an employer complies with section 306Q or 306R.

Who may apply for flexible working arrangements order

  (2) FWC may make a flexible working arrangements orderonly on application by any of the following:

     (a) an employee or organisation whose request under subsection 306Q(1) or 306R(1) for a change in working arrangements has been refused;

     (b) an employee organisation that is entitled to represent an employee covered by paragraph (a);

     (c) the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner.

306T Implementation of flexible working arrangements in stages

  A flexible working arrangements order may provide for changed working arrangements in such stages as FWC thinks appropriate.

306U Contravening a working arrangements order

  An employer must not contravene a term of a flexible working arrangements order.

     Note: This section is a civil remedy provision (see Part 4-1).

306V Inconsistency with modern awards and enterprise agreements

  (1) A term of a modern award has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a flexible working arrangements order that applies to the employee.

  (2) A term of a flexible working arrangements order has no effect in relation to an employee to the extent that it is inconsistent with a term of an enterprise agreement that applies to the employee.

12 Subsection 539(2) (before table item 10)

  Insert:

13 Subsection 545(1) (note 4)

  Omit "65(5),".

14 Before paragraph 557(2)(g)

  Insert:

     (fb) section 306U (which deals with contraventions of flexible working arrangements orders);

15 Before paragraph 576(1)(g)

  Insert:

     (fb) flexible working arrangements (Part 2-7B);

16 Paragraph 653(1)(c)

  Repeal the paragraph, substitute:

     (c) conduct research into the operation of the provisions of the National Employment Standards relating to requests for extensions of unpaid parental leave under subsection 76(1); and

17 Before paragraph 653(1)(d)

  Insert:

     (cb) conduct research into the operation of Part 2-7B in relation to requests for changed working arrangements; and

18 Before paragraph 675(2)(f)

  Insert:

     (eb) a flexible working arrangements order;

19 At the end of subsection 716(1)

  Add:

     ; (h) a term of a flexible working arrangements order.

20 Subsection 739(2)

  Omit "65(5) or".

21 Subsection 739(2) (note)

  Omit "65(5) or".

22 Subsection 740(2)

  Omit "65(5) or".

23 Subsection 740(2) (note)

  Omit "65(5) or".

The Greens amendments are designed to turn what is called a fair work bill into a true fair work bill. Much of what has been put up in this Fair Work Amendment Bill 2014 actually is making work less fair for ordinary Australian workers. Although it seems that there have been negotiations going on between the government and the crossbench to remove some of the worst parts of the bill, it looks like we will end up having as legislation something that is vastly unfair to workers. We are tinkering around the edges, making modifications with relation to greenfield sites, getting rid of the appalling proposal that workers would not get all of the dollars they were owed if they were leaving work and being paid out and where unions are allowed to access workplaces but leaving in parts of this legislation that really are still vastly unfair to workers.

The Greens amendments will scrap the schedule that includes these provisions and instead insert provisions that are aimed at making our employment legislation truly fair. There are two particular areas we have focused on. If you talk to workers around the country, these are the sorts of measures that they want in order to make their work truly fair and to make the relationship with their employer much fairer than it is at the moment.

The first one is in the area of secure employment. We know that there are a growing number of Australian workers finding themselves in insecure employment such as long-term casual employment or rolling contracts, where they have got no job security. They cannot commit themselves to paying a mortgage and they cannot commit themselves to any long-term financial investment because they do not know whether they are going to have a job next week, next month, or even tomorrow. They are at the whim of their employer as to whether they are going to get work on a day-to-day basis. They have got little economic security and little control over their working lives, so it really does make it hard for them to plan their lives. It is a particular problem for women, who are much more likely to find themselves in insecure employment.

The rate of temporary work in Australia is staggering and it is increasing, with over one-quarter of employees having no paid leave entitlements. Our amendment seeks to provide a process for workers employed on an insecure basis to be moved to ongoing employment on a part-time or full-time basis. What it would mean is that an employee who is on a casual or a rolling contract can ask their employer to move them onto a secure contract—that is, ongoing part time or full time. If an employer refused this request for ongoing employment, then our amendment would enable an employee to make an application to Fair Work Australia, who could issue a secure employment order. Fair Work Australia would have to consider the needs for employees to have secure jobs and stable employment and the genuine needs of businesses to use arrangements for not secure employment arrangements. It would actually be a fair arbitration of the needs of the employee and the needs of the employer. By having that arbitration, it makes sure that the needs of employees to have some job security is fully taken into account. At the moment the unfairness of our current working system, with the increasing casualisation of the workforce, means that if you are working—you may be working as a nurse, you may be working as a childcare worker, you may be working in a shop—then you do not know from day to day, from week to week or from month to month whether you are going to have work and you cannot plan your life around it.

The other amendment that we are moving today is on the issue of work-life balance. This amendment would give workers more job security and allow workers to have flexibility that works for them so that they can have time off to do things, like picking up the kids or being there for any number of responsibilities that people have when they are looking after family members, such as looking after a sick, elderly parent. By doing so, these amendments would be creating a bill that really was a fair work bill, that really would provide for flexibility. At the moment in Australia we have got the work-life balance wrong. We need to ensure that people have adequate time for family commitments, community commitments and doing activities that are good for our health, including exercising and sleeping. As I noted in my second reading contribution, our amendments would help to drive positive cultural change in relation to f