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

Thanks for that, Senator Pocock. I don't know if I made this point earlier in responding to Senator Cash, but you're quite correct that the bill includes what's known as a reconsideration process to allow employees, employers or their representatives to seek a reassessment of the better off overall test, where particular arrangements were not considered by the Fair Work Commission when the better off overall test was first applied, either because they were not being engaged in or by omission.

The fundamental point here, of course, is that the government does not want to see workers left worse off. If the Fair Work Commission has a concern that an agreement does not 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 only arise because of a retrospective variation. Really, the intention of the reconsideration process is to permit adjustments to the bargained outcome only to the extent necessary to address a concern about the better off overall test because of a working arrangement that was not initially considered. The intention is not to interfere with the working arrangements for employees who are not affected by the concerns or unnecessarily disrupt the operations of the enterprise. The Business Council and the ACTU both support a better off overall test reconsideration process for enterprise agreements.