Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Hansard source

I appreciate the spirit in which the questions are asked. Occasionally you'll find that, when questions go to some of the aspects of the previous government's record in relation to the independence of the Fair Work Commission, I find it hard to resist pointing out the track record of politicisation of that institution. However, to your question: the amendment would also insert a new subsection—I think it's 249(1AA)—that would provide that, if an application for a single-interest employer authorisation is made by a bargaining representative under paragraph 248(1)(b), in respect of an employer that has 50 or more employees, it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is established.

So the matters that are specified in subparagraph 249(1)(b)(vi) concern whether relevant employers are reasonably comparable in terms of their operations and business activities. Such evidence is likely to concern the nature and size of the employers and their operations and their business activities. While some of this information may be available, at least in part, to employees, particularly in smaller enterprises, much of it will only be known to the employer, or to employees only as it pertains to their role; that is, it may only be apparent to them in a partial or fragmentary way. This is particularly acute in terms of the nature of the employer's enterprise, the employer's business activities and operations. In most cases such information will be most readily available to employers or their bargaining representatives.

These are considerations which must be balanced. Who should bear the burden of establishing that the relevant test is met or not met? Having regard to the burden that could be posed in enterprises of 20 to 49 employees, it is appropriate in such cases to require employees and their bargaining representatives to establish that the relevant test is made when making the application for the authorisation.

With respect to employers with 50 or more employees, due to their increased size and complexity of their operations, they are more likely to be in a position to provide the relevant evidence going to these matters. In such circumstances it would also be much more difficult for employees and their representatives to provide sufficient evidence to establish that the test is met. It is appropriate, therefore, in the government's view, that the amendments provide for a rebuttable presumption and an opportunity for employers—that is, employers with 50 or more employees—to establish that the relevant test is not met in relation to their business. And for the kids upstairs listening to this, there will be a test at the end of the session!