Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Hansard source

TT (—) (): Thank you, Senator Cash. It's good to be with you again on an important piece of legislation. In general terms, can I say that the government's motivation in reforming the better off overall test is that I think pretty much anyone involved in the workplace relations system in Australia at the moment accepts that it's not working as it was intended. What we're trying to do is remove uncertainty that currently attaches to the better off overall test, by allowing the Fair Work Commission to only consider patterns of work that are reasonably foreseeable, meaning the commission will no longer be able to consider unrealistic scenarios. Of course, there are Senate amendments that we put forward that will clarify that the Fair Work Commission must consider whether reasonably foreseeable employees would be better off overall. These changes will ensure that the better off overall test is simplified, while providing strong protections to ensure no worker is worse off. You will remember, Senator Cash, that at the jobs summit both employers and unions agreed that the better-off-overall test is not operating in the way it was intended. As I said, that's why we are making these changes. The amendments clarify that, when applying the better-off-overall test, the Fair Work Commission must undertake a global assessment. It must also consider the views of the parties and give primary consideration to any common view about whether the agreement passes the better-off-overall test as expressed by the employer and bargaining representatives that are employee organisations.

In terms of our amendment that provides that the Fair Work Commission will consider reasonably foreseeable employees, I have already addressed that, but the Fair Work Commission would also have regard to patterns or kinds of work or types of employment only if they are reasonably foreseeable. A further government amendment would provide that, in making this assessment, the commission must have regard to the nature of the enterprise or enterprises to which the agreement relates. If a view is expressed by a reasonable employer, employee or bargaining representative as to whether a working arrangement is reasonably foreseeable, the Fair Work Commission must determine the matter. If the Fair Work Commission makes an amendment to an enterprise agreement to address a concern about meeting the better-off-overall test, the amendment must be necessary to address the concern and the Fair Work Commission must seek the views of the relevant parties. Additionally, the bill includes a reconsideration process to allow employees, employers or their representatives to seek a reassessment of the better-off-overall test where particular working arrangements were not considered by the Fair Work Commission when the BOOT was first applied, either because they weren't being engaged in or by omission. If the Fair Work Commission has a concern that an agreement doesn't pass the better-off-overall test as part of the reconsideration process, it must amend the agreement with retrospective effect if it considers it necessary to address the concern. However, penalty orders won't be available for any contraventions that arise only because of a retrospective variation. Hopefully, that clarifies the intent behind these amendments.