Barbara Pocock (SA, Australian Greens) Share this | Hansard source

Which one? I was first on my feet!

The CHAIR: Sorry, I apologise! I'll allow you to arbitrate between the two of you.

Thank you, Chair, and thank you to David Pocock for gracefully allowing me to go first. The Greens are supporting the government's amendments. There are many elements in this bill that take our labour law into the 21st century. They address the real work circumstances of Australians and they promise to end the fall in real wages which means that so many Australians right now are struggling to be other than working poor. They work in poverty, despite getting a wage. Their wages have not lifted for 10 years and it's time to fix our labour law.

It's time to improve justice for the millions of women who can't predict their hours tomorrow or next week and the millions of workers who have become insecure and who live insecurely, with consequences for their children and their families. It's time to fix our labour law and to make it address the real circumstances that affect millions of Australians, the flexibilities that they need to put together for a job and care of their kids or the care of a parent. We need to increase the wages of the low-paid, the people who are looking after our kids, people in our aged-care sector and in our disability care. We need to narrow the gender pay gap which, for 30 years—and certainly for the last 10—has not seen a narrowing. We need to support more fairly the one in two workers now in our labour market who are women. Some of the warriors in this place are fighting the industrial relations battles of last century. I've heard, today and last night, lines that we would've heard over successive struggles over industrial relations. It's time to move forward so that our labour law addresses the real issues affecting real Australians in their millions outside this place.

I want to specifically say something about the amendments which protect the better off overall test and put in place protections to prevent low-paid workers from going backwards. The government's original bill attempted to remove prospective employees from being considered under the better off overall test when agreements were approved. The Greens were concerned that this would have left some workers worse off. After negotiations with the government, we're pleased to see these amendments.

These amendments will further ensure that future employees will be covered by the agreement that's considered by the Fair Work Commission when they're assessing an agreement against that better off overall test. The amendments also clarify that when applying the better off overall test and considering potential work patterns of current or future employees, the Fair Work Commission will have to assess any work patterns that the employer, union or employee considers reasonably foreseeable, with the Fair Work Commission having regard to the kind of business the employer is running.

The bill establishes a new reconsideration process which allows employers, employees or unions to have agreements reconsidered against the better off overall test. These amendments will mean that if the Fair Work Commission changes an agreement because workers are worse off those changes can be applied retrospectively, allowing workers to have their pay backdated to the time of the agreement.

These amendments are an important win for workers, especially low-paid workers in retail and hospitality. So many of them are young people, so many of them are without very much power in the labour market. The better off overall test and its essential, important features has been preserved. Hence, for this, and many other reasons, which we will get to talk about this afternoon—and we will get to them—the Greens will be supporting this set of amendments. And we have supported them.

By leave—I would now like to move Greens amendments (1) to (3) on sheet 1776:

(1) Clause 2, page 5 (after table item 32A), insert:

(2) Schedule 1, page 250 (after line 5), after Part 25A, insert:

Part 25B — Unpaid parental leave

Division 1 — Main amendments

Fair Work Act 2009

659C Paragraphs 72(3)(b) and (4)(b)

Omit "or 76", substitute "or 76A".

659D Subsection 72A(5)

Omit "section 76", substitute "section 76A".

659E Subsections 76(3) to (5A)

Repeal the subsections.

659F Subsection 76(6)

Omit "under this section", substitute "requested under this section".

659G After section 76

Insert:

76A Responding to requests for extension of unpaid parental leave

Responding to the request

(1) If, under subsection 76(1), an employee requests an employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period, the employer must give the employee a written response to the request within 21 days.

(2) The response must:

(a) state that the employer grants the request; or

(b) if, following discussion between the employer and the employee, the employer and the employee agree to an extension of unpaid parental leave for the employee for a period that differs from the period requested—set out the agreed extended period; or

(c) subject to subsection (3)—state that the employer refuses the request and include the matters required by subsection (6).

(3) The employer may refuse the request only if:

(a) the employer has:

(i) discussed the request with the employee; and

(ii) genuinely tried to reach an agreement with the employee about an extension of the period of unpaid parental leave for the employee; and

(b) the employer and the employee have not reached such an agreement; and

(c) the employer has had regard to the consequences of the refusal for the employee; and

(d) the refusal is on reasonable business grounds.

Note: An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances (see subsection 76C(6)).

(4) To avoid doubt, subparagraph (3)(a)(ii) does not require the employer to agree to an extension of the period of unpaid parental leave for the employee if the employer would have reasonable business grounds for refusing a request for the extension.

Reasonable business grounds for refusing requests

(5) Without limiting what are reasonable business grounds for the purposes of paragraph (3)(d) and subsection (4), reasonable business grounds for refusing a request include the following:

(a) that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;

(b) that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;

(c) that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;

(d) that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;

(e) that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.

Note: The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph (3)(d) and subsection (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph (5)(b)).

Employer must explain grounds for refusal

(6) If the employer refuses the request, the written response under subsection (1) must:

(a) include details of the reasons for the refusal; and

(b) without limiting paragraph (a) of this subsection:

(i) set out the employer's particular business grounds for refusing the request; and

(ii) explain how those grounds apply to the request; and

(c) either:

(i) set out the extension of the period of unpaid parental leave for the employee (other than the period requested by the employee) that the employer would be willing to agree to; or

(ii) state that there is no extension of the period that the employer would be willing to agree to; and

(d) set out the effect of sections 76B and 76C.

Genuinely trying to reach an agreement

(7) This section does not affect, and is not affected by, the meaning of the expression "genuinely trying to reach an agreement", or any variant of the expression, as used elsewhere in this Act.

Division 2 — Civi l remedies and dispute resolution

Fair Work Act 2009

659H Subsection 44(1)

Omit "(1)".

659J Subsection 44(1) (note)

Omit "subsection", substitute "section".

659K Subsection 44(2)

Repeal the subsection (including the notes).

659L Before section 77

Insert:

76B Disputes about extension of period of unpaid parental leave

Application of this section

(1) This section applies to a dispute between an employer and an employee that relates to a request by the employee to the employer under subsection 76(1) to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period if:

(a) the employer has refused the request; or

(b) 21 days have passed since the employee made the request, and the employer has not given the employee a written response to the request under section 76A.

Note 1: Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

Note 2: Subsection 55(4) permits inclusion of terms that are ancillary or incidental to, or that supplement, the National Employment Standards. However, a term of a modern award or an enterprise agreement has no effect to the extent it contravenes section 55 (see section 56).

Resolving disputes

(2) In the first instance, the parties to the dispute must attempt to resolve the dispute at the workplace level, by discussions between the parties.

FWC may deal with disputes

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may refer the dispute to the FWC.

(4) If a dispute is referred under subsection (3):

(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in accordance with section 76C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

Representatives

(5) The employer or employee may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

76C Arbitration

(1) For the purposes of paragraph 76B(4)(b), the FWC may deal with the dispute by arbitration by making any of the following orders:

(a) if the employer has not given the employee a written response to the request under section 76A—an order that the employer be taken to have refused the request;

(b) if the employer refused the request:

(i) an order that it would be appropriate for the grounds on which the employer refused the request to be taken to have been reasonable business grounds; or

(ii) an order that it would be appropriate for the grounds on which the employer refused the request to be taken not to have been reasonable business grounds;

(c) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee's request under section 76A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 76A;

(d) subject to subsection (4) of this section:

(i) an order that the employer grant the request; or

(ii) an order that the employer agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months (other than the period requested by the employee) immediately following the end of the available parental leave period.

Note: An order by the FWC under paragraph (c) could, for example, require the employer to give a response, or further response, to the employee's request, and could set out matters that must be included in the response or further response.

(2) In making an order under subsection (1), the FWC must take into account fairness between the employer and the employee.

(3) The FWC must not make an order under paragraph (1)(c) or (d) that would be inconsistent with:

(a) a provision of this Act; or

(b) a term of a fair work instrument (other than an order made under that paragraph) that, immediately before the order is made, applies to the employer and employee.

(4) The FWC may make an order under paragraph (1)(d) only if the FWC is satisfied that there is no reasonable prospect of the dispute being resolved without the making of such an order.

(5) If the FWC makes an order under paragraph (1)(a), the employer is taken to have refused the request.

(6) If the FWC makes an order under paragraph (1)(b), the grounds on which the employer refuses the request are taken:

(a) for an order made under subparagraph (1)(b)(i)—to be reasonable business grounds; or

(b) for an order made under subparagraph (1)(b)(ii)—not to be reasonable business grounds.

Contravening an order under subsection (1)

(7) A person must not contravene a term of an order made under subsection (1).

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

659M Section 146 (note)

Repeal the note.

659N Subsection 186(6) (notes 1 and 2)

Repeal the notes.

659P Subsection 539(2) (table item 1, column 1)

Omit "44(1)", substitute "44".

659Q Subsection 539(2) ( after table item 5AA)

Insert:

659R Subsection 539(2) (table item 34, column 1)

Omit "745(1)", substitute "745".

659S Subsection 545(1) (note 4)

Repeal the note, substitute:

Note 4: There are limitations on orders that can be made in relation to contraventions of subsection 463(1) or (2) (which deals with protected action ballot orders) (see subsection 463(3)).

659T Paragraph 557(2)(a)

Omit "subsection 44(1)", substitute "section 44".

659U Paragraph 557(2)(p)

Omit "subsection 745(1)", substitute "section 745".

659V Paragraph 557C(3)(a)

Omit "subsection 44(1)", substitute "section 44".

659W Paragraph 558B(7)(a)

Omit "subsection 44(1)", substitute "section 44".

659X After paragraph 675(2)(aa)

Insert:

(ab) an order under subsection 76C(1) (which deals with the extension of periods of unpaid parental leave);

659Y Subsection 739(2)

Repeal the subsection.

659Z Subsection 740(2)

Repeal the subsection.

659ZA Subsection 745(1)

Omit "(1)".

659ZB Subsection 745(1) (note 1)

Omit "subsection", substitute "section".

659ZC Subsection 745(2)

Repeal the subsection (including the note).

(3) Schedule 1, item 660, page 263 (after line 15), at the end of Part 13, add:

Division 20 — Amendments made by Part 25B of Schedule 1 to the amending Act

85 Requests for extension of period of unpaid parental leave

The amendments made by Part 25B of Schedule 1 to the amending Act apply in relation to a request made under subsection 76(1) of this Act on or after the commencement of that Part.

These amendments will allow the Fair Work Commission to deal with employers who unfairly deny workers a request for an extension to unpaid parental leave. This will support parents to take the time they need to care for their child. Prior to this bill being introduced only two of the 11 National Employment Standards—that's the right to request flexibility and the right to ask for an extension of unpaid parental leave—did not have an enforcement mechanism. What do you call a labour law without enforcement? It's a failed gesture. And it especially affects women. So it's telling that those two mechanisms with the most important impacts for women haven't had enforcement—and now must. We are going to correct that with this amendment.

I'm pleased to see that Labor have listened to the Greens and included an enforcement mechanism in this bill for the right to request flexibility. That is a really significant step forward for the millions of people who want to work a different day, or they want to change their start or finish time—simple things that make such a difference to them as they put together the care for someone else and a job.

We also need an enforcement mechanism for employers who unfairly deny requests for an extension to unpaid parental leave. This is a really important thing for those who really need it. Their child is sick. Their plans haven't worked out on parental leave. They can't get child care. This will allow them to get some backup when they seek an extension to their unpaid parental leave.

We know we need to increase paid leave. We are so far from the international standard of 52 weeks of paid leave and we need to move towards that as soon as we can. But this measure will back up those who need an increase in their unpaid leave now. It makes no sense to leave only one of the 11 National Employment Standards without an enforcement mechanism, so I'm delighted to move this amendment which will make a real difference to the lives of many Australians.