Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

Before I start this line of questioning, because it is going to be quite a technical line of questioning in relation to the better off overall test, I want to remind the chamber that the questions I asked last night and I am going to proceed to ask today are very deliberate questions. In particular they aim to enable us, to the extent possible, due to the significant uncertainty about how this legislation could be interpreted, to get clear and concise answers to provide guidance to those interpreting the government's legislative intent. For that reason, and just for the benefit of the Hansard record, I remind the chamber and the minister that the official records of parliamentary debates include questions in the Committee of the Whole stage. For the benefit of those in the gallery, that's exactly what we are doing now. We are in the Committee of the Whole stage, asking questions in relation to Labor's industrial relations legislation. They are a vital source of information when it comes to statutory interpretation.

Minister, I now want to turn to a line of question in relation to the better off overall test. I will set the scene by referring to the comments of the Minister for Employment and Workplace Relations in the second reading speech in the House of Representatives, on Thursday 27 October 2022. In relation to simplifying the better off overall test, the minister stated:

We'll make the better off overall test simple, flexible and fair.

There's consensus that approval requirements for enterprise agreements are onerous, complex and unnecessarily prescriptive.

We'll make key changes to fix this.

First, the concept of 'prospective award covered employees' is removed for enterprise agreements that are not greenfield. For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.

The bill will restore the original intent of the test as a global, rather than line-by-line, comparison against the modern award.

And, thirdly, if there is a common view that the employer and union have that the agreement passes the test, the commission will give primary consideration to that view.

In particular, I go to these comments:

First, the concept of 'prospective award covered employees' is removed for enterprise agreements that are not greenfield. For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.

That was from the minister's statement in the House of Representatives on Thursday 27 October 2022 when he was referring to the bill that was tabled at the time. If one was to go to that, in terms of a matter of statutory interpretation, it would appear at this stage that the concept of 'prospective award covered employees' will be removed. If I then go to the regulation impact statement, in terms of the better off overall test, it states:

As well as the concern over the genuine agreement requirements, employers have consistently raised issues about the application of the Better Off Overall Test …

It goes through the Coles decision, and then it says:

Employer groups are strongly of the view that the broader decline in enterprise agreement coverage across the labour market is, in part, referable to these changes in the application of the test and the uncertainty it has resulted in.

There appeared to be consensus about the changes proposed by the government in relation to the better off overall test and, in particular, to quote the minister, 'the concept of the prospective award covered employees being removed et cetera'.

In relation to the bill that was tabled, before the amendments last night were tabled, could I go through that with you now to understand, in particular, what happened in relation to the prospective employees and the hypothetical employees. What was the change originally intended to do?