Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Mr Temporary Chairman, I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 18 June 2007.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Mr Temporary Chairman, it is all very well for the explanatory memorandum to be tabled, but there are four participants in the debate, as far as I can see—although there may be more; maybe six—on this side and not one of us has got a copy of that explanatory memorandum.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Mr Temporary Chairman, I can confirm that. I have just tried to look through the documents circulated in the chamber that are certainly on the desks in front of me and I cannot find anything. Here we have a government that put in 336—I think it was—amendments but it was some 30 minutes, I think, before the original Work Choices bill was debated. This is a government that has had to bowl up further tranches of amendments in relation to its Work Choices legislation because it could not get the drafting right. We now have yet again the government coming up with amendments between the House and the Senate, because they cannot get themselves organised to actually make sure that the bill is an appropriate form before it comes into this chamber, and then tabling a supplementary memorandum at this point in the debate. It may well have been circulated in the chamber, but certainly the opposition does not have it and the spokesperson for the Australian Democrats does not have it, although I understand Senator Siewert, the spokesperson for the Australian Greens, now has it.

This is yet another example of the way in which this government rushes this industrial relations legislation through. It is poorly drafted, with all due respect to the officials who are here. They are under time constraints that the government imposes because of its political objectives. It is simply further confirmation that this bill is all about politics: it is about pollsters first, advertising second and then the text of the legislation at the end of it. Here we have, again, the government belatedly introducing more amendments, and supplementary EMs in relation to those further amendments.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

This is a very cheap attack on the government by the opposition. It clearly is an inconvenience to honourable senators if they have not received the explanatory memorandum, but what the government does in these circumstances—as everybody knows—is to provide them to the Table Office. I am advised that the Table Office circulated the explanatory memorandum over 24 hours ago. So, if honourable senators somehow did not get them, then, with great respect, that is a matter of regret and I accept that. But to try to visit that on the government is inappropriate. Clearly something has fallen down in the system, but, on this occasion, I feel somewhat confident that it was not in fact the government’s fault. Having said that, it clearly is a matter of regret that that which was provided over 24 hours ago has not found its way through to circulation.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I have been advised by the Clerk that the documents were circulated yesterday. Additional copies were circulated a few moments ago, so every senator at the present time should have a copy of the relevant amendments.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I’m sure I won’t get an apology.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

No, Minister, you will not get an apology, because yet again what we have is a government that cannot work out a bill between the House of Representatives and the Senate. How many times, in relation to industrial relations legislation, have you guys had to amend this while the bill is being walked over? You just cannot draft it completely. How many times have we had to amend this legislation? You had 336 amendments shortly before the whole Work Choices bill started. I do not actually blame the department for this. They are operating under the exigencies that you place on them because you know the politics is against you. You know you have to rush this through. That is why you were out there advertising the day after the announcement, why you are demanding that people draft legislation on the run and why—yet again—we have legislation in chapters. We have tranches of legislation because you cannot get the bill drafted completely before it comes into the chamber.

John Watson (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Minister, maybe you would like to move your amendment now.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I seek leave to move government amendments (1) to (6) and (11) through to (44) on sheet PJ379 together.

Leave not granted.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I will just clarify this to expedite it for Senator Abetz. As I understand the Labor position, we oppose government amendment (43) but are willing to support the remainder. So if you excise amendment (43) from the last tranche that you just attempted to move, Minister, that would be acceptable to the Labor Party. I am not sure about the minor parties.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

by leave—I will try my luck and move government amendments (1) to (6), (11) to (42) and (44) on sheet PJ379:

(1)    Clause 2, page 2 (at the end of the table), add:

(2)    Schedule 1, item 1, page 4 (after line 10), before the definition of designated award in subsection 346B(1), insert:

business being transferred has the same meaning as in Part 11.

(3)    Schedule 1, item 1, page 4 (after line 27), after the definition of industrial instrument in subsection 346B(1), insert:

new employer has the same meaning as in Part 11.

old employer has the same meaning as in Part 11.

(4)    Schedule 1, item 1, page 5 (after line 24), after the definition of salary in subsection 346B(1) (after the note), insert:

time of transmission, in relation to a business being transferred, has the same meaning as in Part 11.

transferring employee has the same meaning as in Part 11.

transmission period, in relation to a business being transferred, has the same meaning as in Part 11.

(5)    Schedule 1, item 1, page 6 (after line 20), after section 346C, insert:

346CA  Industry or occupation usually regulated by State award before the reform commencement—extended operation of certain provisions

        (1)    For the purposes of a provision mentioned in subsection (2), an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by an employee are usually regulated by an award is taken to include an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee:

             (a)    were, immediately before the reform commencement, usually regulated by a State award; or

             (b)    would, but for an industrial instrument or a State employment agreement, usually have been regulated by a State award immediately before the reform commencement.

        (2)    The provisions are as follows:

             (a)    subparagraph 346E(1)(b)(ii);

             (b)    subparagraph 346E(2)(b)(ii);

             (c)    subparagraph 346F(1)(b)(ii);

             (d)    subparagraph 346F(2)(b)(ii);

             (e)    paragraph 346K(2)(a);

              (f)    a provision referred to in paragraph (a), (b), (c) or (d), as referred to in section 346L.

(6)    Schedule 1, item 1, page 7 (after line 6), at the end of Subdivision A, add:

346DA  Transmission of business—where no decision under section 346M at time of transmission

        (1)    This section applies if:

             (a)    the Workplace Authority Director is required to decide under section 346M whether a workplace agreement passes the fairness test; and

             (b)    before the Workplace Authority Director makes the decision, the workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585.

        (2)    Subject to subsection (4), for the purposes of deciding under section 346M whether the workplace agreement passes the fairness test, references to the employer in section 346M and in the definition of relevant award are taken to be references to the old employer.

        (3)    If:

             (a)    the Workplace Authority Director has been notified that the workplace agreement is binding on the new employer and the transferring employee or transferring employees; and

             (b)    the Workplace Authority Director is required to give a notice under section 346J, 346P or 346U to the employer in relation to the workplace agreement;

the Workplace Authority Director must give the notice to both the old employer and the new employer.

        (4)    If the Workplace Authority Director decides under section 346M that the workplace agreement does not pass the fairness test:

             (a)    references in section 346R to the employer bound by the workplace agreement are taken to be references to the new employer; and

             (b)    to avoid doubt, if the new employer subsequently lodges a variation of the workplace agreement under section 346R then, for the purposes of deciding under section 346U whether the workplace agreement as varied passes the fairness test, references in section 346M to the employer are taken to be references to the old employer.

Note 1:  The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.

Note 2:  The compensation payable to the transferring employees under section 346ZD by both the old employer and the new employer is as specified in subsections 346ZD(2), (2A) and (2B).

346DB  Transmission of business—where no decision on a varied agreement under section 346U at time of transmission

        (1)    This section applies if:

             (a)    the Workplace Authority Director is required to decide under section 346U whether a workplace agreement as varied passes the fairness test; and

             (b)    before the Workplace Authority Director makes the decision, the workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585.

        (2)    For the purposes of deciding under section 346U whether the workplace agreement as varied passes the fairness test, references in section 346M to the employer are taken to be references to the old employer.

        (3)    If:

             (a)    the Workplace Authority Director has been notified that the workplace agreement is binding upon the new employer and a transferring employee or transferring employees; and

             (b)    the Workplace Authority Director is required to give a notice under section 346U to the employer in relation to the workplace agreement;

the Workplace Authority Director must give the notice to both the old employer and the new employer.

346DC  Transmission of business—employees still employed by old employer

                 To avoid doubt, if a workplace agreement becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, this Division has effect, to the extent that the workplace agreement continues to bind the old employer, and an employee or employees who are not transferring employees, according to its terms.

(11)  Schedule 1, item 1, page 13 (lines 9 to 15), omit the note.

(12)  Schedule 1, item 1, page 15 (lines 7 to 13), omit the note.

(13)  Schedule 1, item 1, page 22 (line 27), omit paragraph 346U(4)(b), substitute:

             (b)    if the workplace agreement as varied passes the fairness test:

                   (i)    that the workplace agreement continues in operation; and

                  (ii)    that the workplace agreement was varied by way of a variation or a written undertaking, as the case may be; and

                 (iii)    that the employee or employees whose employment is, or was at any time, subject to the workplace agreement are, on and from the date of issue of the notice, entitled to any compensation payable to the employee or employees under section 346ZD; and

             (c)    if the workplace agreement as varied does not pass the fairness test:

                   (i)    that, if the workplace agreement was in operation immediately before the date of issue of the notice—the agreement ceases to operate on the date of issue of the notice; and

                  (ii)    that the employee or employees whose employment was at any time subject to the workplace agreement are, on and from the date of issue of the notice, entitled to any compensation payable to the employee or employees under section 346ZD.

(14)  Schedule 1, item 1, page 24 (after line 38), after subsection 346Y(4), insert:

     (4A)    Despite subsection (2), if the original agreement is a workplace agreement that, after lodgment, becomes binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585, this section does not have the effect of binding the new employer and the transferring employee or transferring employees to an instrument or to a designated award.

Note:   The employment arrangements that have effect in relation to the new employer and the transferring employee or transferring employees are as set out in section 346YA.

(15)  Schedule 1, item 1, page 25 (after line 16), after section 346Y, insert:

346YA  Employment arrangements if a workplace agreement ceases to operate because it does not pass fairness test—transmission of business

        (1)    This section applies if:

             (a)    on a particular day (the cessation day), a workplace agreement (the original agreement) ceases to operate under section 346R or 346W because the original agreement does not pass the fairness test; and

             (b)    during the period beginning when the original agreement was lodged and ending on the cessation day, the original agreement became binding upon a new employer and a transferring employee or transferring employees because of the operation of section 583 or 585 in relation to a business being transferred; and

             (c)    the cessation day occurs during the transmission period in relation to the business being transferred.

Note:   If the cessation day occurs after the transmission period ends, the rules in Part 11 will have effect according to their terms.

        (2)    The new employer and the transferring employee or transferring employees who were bound by the original agreement immediately before the cessation day are taken, on and from the cessation day, to be bound by:

             (a)    the instrument:

                   (i)    that, but for the original agreement having come into operation, would have bound the old employer and the transferring employee or transferring employees immediately before the time of transmission; and

                  (ii)    that was capable of binding the new employer after the time of transmission under Part 11, Schedule 6 or Schedule 9; or

             (b)    if there is no instrument of a kind referred to in paragraph (a) in relation to the old employer and one or more of the transferring employees—the designated award in relation to that employee or those employees, to the extent that the designated award contains protected award conditions.

        (3)    If, but for the original agreement having come into operation, the old employer would have been bound, immediately before the time of transmission, under a designated provision by a redundancy provision in relation to a transferring employee or transferring employees whose employment was subject to the original agreement, the new employer is taken:

             (a)    to be bound under section 598A or clause 27A of Schedule 9, as the case requires, on and from the cessation day, by the redundancy provision in relation to the transferring employee or transferring employees; and

             (b)    to continue to be so bound until the earliest of the following:

                   (i)    the end of the period of 12 months beginning on the first day on which the old employer became bound under a designated provision by the redundancy provision;

                  (ii)    the time when the employee ceases to be employed by the new employer;

                 (iii)    the time when another workplace agreement comes into operation in relation to the transferring employee or the transferring employees and the new employer.

        (4)    If the original agreement is a workplace agreement as varied under Division 8, the workplace agreement as in force before the variation was lodged is, despite section 346ZB, capable of being an instrument described in paragraph (2)(a).

        (5)    In this section:

designated provision has the same meaning as in section 346ZA.

instrument means any of the following:

             (a)    a workplace agreement;

             (b)    an award;

             (c)    a pre-reform certified agreement (within the meaning of Schedule 7);

             (d)    a pre-reform AWA.

Note:  Preserved State agreements and notional agreements preserving State awards are dealt with in Schedule 8.

(16)  Schedule 1, item 1, page 25 (line 17), omit “section 346Y”, substitute “sections 346Y and 346YA”.

(17)  Schedule 1, item 1, page 25 (line 18), before “If”, insert “(1)”.

(18)  Schedule 1, item 1, page 26 (after line 4), at the end of section 346Z (after the note), add:

        (2)    If, because of the operation of section 346YA, a new employer and a transferring employee or transferring employees are taken to be bound by an instrument, the instrument is taken, despite any other provision of this Act, to have effect in relation to the new employer and the transferring employee or employees throughout the period:

             (a)    beginning on the cessation day; and

             (b)    ending at the end of the transmission period in relation to the business being transferred;

as if the new employer and the transferring employee or transferring employees had become bound by the instrument under Part 11, Schedule 6 or Schedule 9, as the case requires.

(19)  Schedule 1, item 1, page 27 (line 16), omit “section 346Y”, substitute “section 346Y or 346YA”.

(20)  Schedule 1, item 1, page 27 (line 34), omit “became entitled under the workplace agreement”, substitute “was entitled, under the workplace agreement, and under any other applicable law, agreement or arrangement that operated in conjunction with the workplace agreement,”.

(21)  Schedule 1, item 1, page 28 (lines 6 to 13), omit all the words after “period,”, substitute “worked out in accordance with the assumptions set out in subsection (2A)”.

(22)  Schedule 1, item 1, page 28 (after line 13), after subsection 346ZD(2), insert:

     (2A)    For the purposes of working out the total value of the entitlements to which the employee would have been entitled, in respect of one or more periods of employment of the employee during the fairness test period, it is to be assumed that, during that period or those periods of employment:

             (a)    the employee’s employment was subject to:

                   (i)    the instrument or instruments that, but for the workplace agreement, would have bound the employer in relation to that period or those periods of employment of the employee; or

                  (ii)    if there is no such instrument—the designated award in relation to the employee, to the extent that it contains protected award conditions; and

             (b)    the employer was bound, under a designated provision, by any redundancy provision that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and

             (c)    the employer was bound under section 394 by any undertaking that, but for the workplace agreement having come into operation, would have bound the employer in relation to the employee; and

             (d)    the employee’s employment was subject to any other applicable law, agreement or arrangement that would have operated in conjunction with the instrument or instruments referred to in subparagraph (a)(i), or the designated award referred to in subparagraph (a)(ii), as the case requires.

(23)  Schedule 1, item 1, page 28, after proposed subsection 346ZD(2A), insert:

      (2B)    If, because of the operation of section 583 or 585, the workplace agreement bound an old employer and a new employer in relation to the employment of a transferring employee during the fairness test period:

             (a)    the transferring employee is entitled to be paid compensation by the old employer in respect of the period or periods during which the employee was employed by the old employer, worked out in accordance with the assumptions set out in subsection (2A); and

             (b)    the transferring employee is entitled to be paid compensation by the new employer in respect of the period or periods during which the employee was employed by the new employer, worked out in accordance with the assumptions set out in subsection (2A), subject to the following modifications:

                   (i)    subparagraph (2A)(a)(i) is taken to refer to the instrument described in paragraph 346YA(2)(a); and

                  (ii)    a reference in paragraph (2A)(b) to a designated provision is taken to be a reference to section 598A or clause 27A of Schedule 9, as the case requires.

(24)  Schedule 1, item 1, page 28 (after line 35), before the definition of fairness test period, insert:

designated provision has the same meaning as in section 346ZA.

(25)  Schedule 1, item 1, page 29 (after line 25), after section 346ZE, insert:

346ZEA  Notice requirements in relation to transmission of business

        (1)    This section applies if:

             (a)    a new employer is bound by a workplace agreement (the transmitted workplace agreement) in relation to a transferring employee because of section 583 or 585; and

             (b)    before the time of transmission in relation to the business being transferred, the Workplace Authority Director gave notice to the old employer under section 346J that the Workplace Authority Director must decide under section 346M or 346U whether the transmitted workplace agreement passes the fairness test; and

             (c)    as at the time of transmission, the Workplace Authority Director has not yet decided whether the transmitted workplace agreement passes the fairness test under whichever of those sections is applicable.

        (2)    The old employer must take reasonable steps to give a written notice to the Workplace Authority Director that:

             (a)    identifies the transmitted workplace agreement; and

             (b)    states whether or not the old employer remains bound by the transmitted workplace agreement in relation to the employment of any employees; and

             (c)    specifies the date on which the transmission period in relation to the business being transferred ends; and

             (d)    specifies the name and address of the new employer.

        (3)    Subsection (2) is a civil remedy provision.

Note:   See Division 11 for provisions on enforcement.

(26)  Schedule 1, item 5, page 32 (line 31), after “346Y”, insert “, 346YA”.

(27)  Schedule 1, item 6, page 33 (line 9), after “346Y”, insert “, 346YA”.

(28)  Schedule 1, item 7, page 33 (line 21), after “346Y”, insert “, 346YA”.

(29)  Schedule 1, item 15, page 35 (after line 6), after paragraph (jb), insert:

          (jba)    for subsection 346ZEA(2)—30 penalty units;

(30)  Schedule 1, item 30, page 37 (line 34), omit “subsection 346Y(5)”, substitute “subsections 346Y(5) and 346YA(5)”.

(31)  Schedule 1, item 32, page 38 (line 20), omit “subsection 346Y(5)”, substitute “subsections 346Y(5) and 346YA(5)”.

(32)  Schedule 1, item 33, page 38 (line 34), after “346Y”, insert “, 346YA”.

(33)  Schedule 1, item 34, page 39 (line 8), after “346Y”, insert “, 346YA”.

(34)  Schedule 1, item 39, page 40 (line 20), after “346Y”, insert “, 346YA”.

(35)  Schedule 1, item 40, page 40 (line 30), after “346Y”, insert “, 346YA”.

(36)  Schedule 1, item 41, page 41 (line 30), omit “paragraph 346Y(2)(b)”, substitute “paragraphs 346Y(2)(b) and 346YA(2)(b)”.

(37)  Schedule 1, item 41, page 41 (line 38), omit “subsection 346Y(5)”, substitute “subsections 346Y(5) and 346YA(5)”.

(38)  Schedule 1, item 41, page 42 (line 4), omit “346ZD(2)(b)(ii)”, substitute “346ZD(2A)(a)(ii)”.

(39)  Schedule 1, item 41, page 42 (line 8), omit “paragraph 346Y(2)(b)”, substitute “paragraphs 346Y(2)(b) and 346YA(2)(b)”.

(40)  Schedule 1, item 42, page 43 (line 26), omit “paragraph 346Y(2)(b)”, substitute “paragraphs 346Y(2)(b) and 346YA(2)(b)”.

(41)  Schedule 1, item 42, page 43 (line 27), omit “subsection 346Y(5)”, substitute “subsections 346Y(5) and 346YA(5)”.

(42)  Schedule 1, item 42, page 43 (line 30), omit “346ZD(2)(b)(ii)”, substitute “346ZD(2A)(a)(ii)”.

(44)  Page 83 (after line 19), at the end of the Bill, add:

Schedule 6—Minor technical amendments 

Workplace Relations Act 1996

1  Paragraph 354(1)(b)

After “but for the agreement”, insert “, a previous workplace agreement or another industrial instrument”.

2  Subsection 354(4)

Insert:

industrial instrument means any of the following:

             (a)    a pre-reform AWA;

             (b)    a pre-reform certified agreement (within the meaning of Schedule 7);

             (c)    a workplace determination;

             (d)    a section 170MX award (within the meaning of Schedule 7);

             (e)    an old IR agreement (within the meaning of Schedule 7).

3  Application

The amendments made by this Schedule apply to workplace agreements lodged on or after the day on which this Schedule commences.

Question agreed to.

I move government amendment (43) on sheet PJ379:

(43)  Schedule 2, item 2 page 53 (after line 24), after Division 3, insert:

Division

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

As indicated, Labor will be opposing amendment (43). Let us be clear about what amendment (43) does: it inserts in division 3A the requirement in relation to the workplace relations fact sheet. The fact of the fact sheet, as it were, was disclosed in some media just recently. What we see now is that the Howard government, not content with spending millions and millions of dollars of taxpayers’ money on government advertising in industrial relations and other portfolio areas, wants to use its legislative authority to impose a requirement that millions of existing Australian employees be given a fact sheet by their employer. It is quite extraordinary that the government believes it is appropriate to require this in workplaces. It really is yet another example of government-mandated propaganda.

Let us be clear—this is not about information; this is not about making sure people know their rights: this is all about the government knowing it has an issue with the popularity or lack of popularity of Work Choices prior to the election and using every means at its disposal to try to remedy that. This is all about government spin. Senator Abetz may well get up shortly and talk about the importance of employees having information about their rights. It is interesting, isn’t it, that we did not see this attention or this commitment to providing employees with information about what the Howard government would do on industrial relations before the last election?

I do not recall, Senator Abetz, the full horror of your Work Choices position being articulated to the electorate. Does anyone here recall any Liberal Party advertising that said, ‘Hey, guess what—we are going to allow your penalty rates to be taken away’? Whoopy-do. ‘Hey, guess what—we are going to allow you to trade off public holidays.’ ‘Hey, guess what—we are going to protect only a very small number of conditions and we are going to talk about protected award conditions, but they are actually not protected.’ I do not recall any of that sort of advertising funded by the Liberal Party. Amazingly, after the election and after Work Choices was put in, we suddenly saw this heartfelt commitment by the Howard government to provide employees with information about their Work Choices legislation.

So let’s be clear: what this amendment inserts into the act are provisions relating to the workplace relations fact sheet. It also gives the government a broad discretion to amend the form and content of that fact sheet through regulation. This will potentially allow the government to avoid scrutiny about the content of the fact sheet during this debate and subsequently, and it may well allow the government to insert a requirement for further or different information prior to the federal election.

We understand what this amendment is all about. This amendment is all about putting in place a legislative framework which will require government propaganda to be given to employees. Of course, what we know is that this is all about getting this information out prior to the next election. That is what this is about. This is a pre-election stunt. It is interesting from a government that says, ‘We are about freedom, individual freedom’ et cetera. They are actually also going to require employers, at the risk of breaching the provision in the act, to give employees these fact sheets within a period of seven days upon commencement of employment and they will potentially face fines if they fail to do so. It is quite interesting. We have government-mandated propaganda and potential fines for employers if they fail to pass this on to people.

So, yes, Labor is opposed to this. We do not think it is appropriate to have mandated government propaganda placed in this legislation. This is a government that spent $55 million on advertising its Work Choices legislation. Now, on the basis of pollsters’ advice, they are ditching the phrase ‘Work Choices’ and they are spending potentially up to an additional $36.5 million on their second tranche of Work Choices advertising. I note that the minister has never come in here and discounted that figure being on the public record, nor has he ever said how much the government intends to spend between now and the next election on the Work Choices mark 2 campaign, or the ‘Let’s Pretend it’s not Work Choices’ campaign, which is probably a better way to badge it.

This government spent, I think, $4.1 million at a cost of about $25,000 an hour on their first tranche of the mark 2 Work Choices advertising campaign and this is a government that, the day after the Prime Minister’s announcement, had full-page advertisements in every national Australian paper and every metropolitan daily over that weekend saying, ‘This is our whiz-bang new change to our legislation.’ Paradoxically, one of the things we found out in estimates is that they actually class that as non-campaign advertising. How Orwellian is that? You make an announcement about a policy change, you get the taxpayers to pay for it and you call it non-campaign advertising—non-campaign advertising that just happens to be drafted in consultation with the Prime Minister’s office. This is the sort of grubby political advertising propaganda that we see from this government, which knows it has got a political problem with its industrial relations system but which is not interested in actually resolving the problem. What it is interested in is resolving the spin. This is an amendment that is all about yet more Howard government propaganda with respect to workplace relations.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I wonder if I could add to those remarks already made so that when the minister responds he has got my concerns to address as well. I take a slightly contrary view to the shadow minister in that I absolutely do support the maximum information being available to any employee and employer to enable them to comply with the law better, but I am very alert to the dangers in a pre-election environment of such information being provided in such a manner as it might be thought to constitute, in the shadow minister’s words, propaganda—in other words, saying to the employee, ‘Look what a good government we have got—and by the way it happens to be a coalition government, so Work Choices is not as bad as its opponents believe.’ So I need to see if there are any safeguards.

The supplementary explanatory memorandum, at paragraph 79 of page 13, states that these amendments would ‘require the Workplace Authority Director to gazette a Workplace Relations Fact Sheet’. Minister, my question is: is that gazette or the regulations that surround this issue subject to parliamentary disallowance or anything of that nature to ensure that the fact sheet is exactly what the legislation says it is—namely, that it spells out the law without any kind of partisan inference or bias? My question is a precautionary one. I support the principle of information being provided. I am very wary if information is perverted in any way.

My second brief question to you, Minister, which, hopefully, you can respond to, is whether the businesses that have to do this will be clearly identified and identifiable. The reason I ask that question is that the statistics are very difficult to get, but I understand that in some states up to 25 per cent of all employees are still under state systems. In some cases those are easy to identify—namely, they work for the public sector. But there are many people still in the private sector—unincorporated businesses and so on—who do not fall under the federal law and it would not be easy for a Workplace Authority inspector to turn up to an establishment and know whether the business was incorporated or unincorporated. It might be called, to use a name of one of the senators here, ‘Marshall’s Cafe’ and it might be incorporated; it might be unincorporated. So you want to avoid a situation where somebody is threatened with punishment for not handing these things out when they may not in fact be subject to federal law. My question is: will those who have to abide by the law be easily identifiable? I remind the minister that in my head is the fact that in local government, for instance, there have been some quarrels as to which councils fall under federal law and which do not, and I would like to know how those sorts of issues would be resolved.

My third initial query with respect to this particular item is the question of exemptions. The minister would be well aware that under many acts there are provisions for categories to be exempted—for instance, the Financial Services Act, where certain categories are exempted from complying. I wonder whether there will be disallowable instruments such as regulations which will say that microbusinesses employing only one person may or may not have to comply with this law or whether they will say that leniency will be granted for specific categories. For instance, you might find people for whom the English language is very difficult and they might have had difficulty understanding the law. There may be categories—and I am thinking on the run, because bear in mind I have only just seen these amendments and the supplementary explanatory memorandum—that legitimately should qualify for exemptions.

So, to recap the three questions I have, briefly, to make sure that they are clear: I want to know whether there is any measure by which either the parliament or an independent body can ensure that the fact sheet is exactly that—just a fact sheet; secondly, that businesses which are not liable under this law will not be subject to error or mistake by regulators trying to enforce a law; and, thirdly, whether there will be any categories of exemptions spelled out and whether that will be a disallowable instrument.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

There are a number of issues to deal with and, if I may, I will go through them in reverse order. As I understand it, in relation to Senator Murray’s three questions there will not be any categories of exemption. In relation to those that will be covered by this provision, it will only be those businesses that are currently covered by the federal system and, hopefully, businesses would be aware which category they fall into. The first question Senator Murray asked was in relation to the proposed document that is going to be gazetted. No, that will not be a disallowable instrument. That will be part and parcel of the Workplace Authority Director’s role. The director will be responsible for that particular document.

Having dealt with Senator Murray’s matters, I turn some attention to Senator Wong’s contribution. It is a very interesting contribution when you consider that the Labor Party has been out there condemning the prospect of a fact sheet. Ms Gillard has been out there saying that this would be a terrible imposition on small business and Senator Wong has echoed those comments, being highly critical of a workplace relations fact sheet.

Firstly, let us see what is actually being proposed. Under proposed subsection 154A there would be a requirement that the Workplace Authority Director gazette a workplace relations fact sheet setting out information about the Australian fair pay and conditions standard, protected award conditions, the fairness test and the roles of the Workplace Authority Director and the Workplace Ombudsman. I really do not know what the objection could be to employees being informed as to where they might be able to go if they have got difficulties or questions or issues in being advised what their protected award conditions are or what the fairness test means. It defies all belief from the party that allegedly champions the protection of workers—but of course the trade union movement especially in the private sector only represents a small minority of workers these days and overall they represent, I think, fewer than one in five Australian workers. So we are concerned as a government to ensure that information gets out to those 80 per cent plus of Australian workers who have made a conscious decision not to be a member of the trade union movement. What the Labor Party wants at all times is for no information to be provided to workers other than through the trade union movement. And when they have so spectacularly failed in getting the confidence of Australian workers I believe that it is appropriate that somebody like the Workplace Authority Director provides information and that that information is provided by employers.

The proposed subsection 145A(3) would allow regulations to prescribe other matters relating to the content, form or manner of providing the workplace relations fact sheet. Proposed subsection 145B would require an employer to take reasonable steps to provide each employee with a copy of an information statement within seven days of commencing employment. As a transitional measure proposed subsection 154C would also require employers to take reasonable steps to provide each existing employee with a copy of the fact sheet within three months of it first being gazetted. Proposed section 154D would allow a workplace inspector or an affected employee to apply to the Federal Court to impose a penalty on an employer for failing to provide a copy of the statement to an employee. That would be, I assume, a measure of last resort and voluntary compliance would be sought in relation to this information being provided to Australian workers.

Why is it that the government wants this fact sheet to be provided to Australian workers? For one simple reason: it is for their own protection and for their own good that they are fully informed as to their rights and entitlements. So it seems to me quite bizarre that the Australian Labor Party would be objecting to this. That got me thinking back to the Labor Party’s alleged 10 minimum standards. Remember that document Forward with Fairness, in which they had 10 minimum standards for the Australian workforce? There was one major omission: the minimum wage. Oops, a bit of an oversight! Here we are talking about the basic conditions of Australian workers, and the luminaries of the Australian Labor Party, in conjunction with the ACTU, forget to talk about the minimum wage. Nevertheless, in that Forward with Fairness document, at point 8 of the 10 points that missed out on the minimum wage—and I am still waiting for them to say that there are now 11 standards—the Labor Party policy on national employment standards says:

Employers must provide all new employees with a Fair Work Information Statement which contains prescribed information about the employee’s rights and entitlements at work, including the right of the employee to choose whether to be or not to be—

and here is the crunch—

a member of a union and where to go for information and assistance.

The only real difference seems to be that we will not be putting on the document potentially which particular trade union might be relevant to a person’s employment. Other than that, there is virtually no difference between what we are proposing and what is in point 8 on page 8 of the Labor Party’s so-called Forward with Fairness document. This is another example of opposition for opposition’s sake. I say to the Australian people—and I have said this so often now: do not listen to what Labor say; look at what they actually do. They condemn our policy but in fact they have a policy that is very similar, other than that they have the trade union element in it.

Whilst I am on that, could I simply invite those senators opposite who talk about government advertising to come out with a big stick against Premier Iemma, who, in the 11 months before the last New South Wales state election, spent $90 million on government advertising—and there was not a breath out of the Australian Labor Party. When Premier Beattie has his colour inserts and other inserts in all Australian newspapers, with a big smiling photograph of himself, there is not a single word of condemnation. When the state Labor government in my home state of Tasmania undertakes information campaigns, there is not a single word of criticism. This is another classic example of: look at what Labor do, not at what they say. What the Labor Party are basically saying is that state Labor government advertising is good and federal Liberal government advertising is bad. What is the difference? One is Labor and one is Liberal. By definition, it is very clear. I think the Australian people are more intelligent than that, and the assertions made by those opposite simply do not stack up.

What we are concerned about in these amendments is to ensure that Australian workers have protection and know where to go for assistance. That is why the government will be pursuing these amendments.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I just want to understand the  effect of these amendments. The explanatory memorandum says that these amendments would require an employer to provide a copy of the workplace relations fact sheet to each employee within a week of the employee commencing employment. Given that most AWAs are offered to employees at the time they are employed—more often than not as a ‘take it or leave it’approach—is there anything in your amendments that requires the fact sheet to be provided to the employee prior to their being required to sign an AWA?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The workers of Australia who will be signing up to AWAs will not of necessity be required to be provided with that particular document, but they will be provided with an information sheet in relation to agreement-making, which will cover some of these aspects. But, of course, the important point is that the agreement that they enter into will be subjected to the fairness test and, therefore, as I was able to indicate in the summing-up speech, about 90 per cent of Australian workers—those on AWAs and those who earn less than $75,000—will have that added protection.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Minister, returning to the fact sheet that will be provided, I need some clarification—and I am sure Senator Marshall will want to follow through on this. As you know, Proposed subsection 154A(1) says that the Workplace Authority Director must, by notice published in the Gazette, issue a document called the workplace relations fact sheet. Proposed subsection 154A(3) says the regulations may prescribe other matters relating to the content, form or manner of providing the workplace relations fact sheet. As I understand it, the regulations, in this context, mean the workplace regulations generally, which are disallowable. If those regulations are disallowable and they actually refer to the content—which, of course, would be the wording, as I understand it—that would always override the Gazette. So I would think that the gazettal would follow the regulations—I would expect that to happen—unless there were no regulations referring to this. Do you see my problem? You have got two forms of publishing. My question is: will there be regulations—or don’t you know that yet—and, if there will be, am I right in believing that they would precede the gazettal but, because regulations are disallowable, the form and content would indeed be subject to parliamentary disallowance? I might be conceiving a conflict here; I am not sure.

The other brief question I have on these issues is whether the onus is initially on an employer. As I understand the law as written—and bear in mind that I have not had long to deal with it—the onus is on the employer as a matter of course. But, in the early distribution of these forms, is the onus on the Workplace Authority to get the forms to every employer or is the onus on every employer to go and get these forms themselves? Again, I stress that not all employers are on the internet and have a printer or are fully cognisant of the English language. They might not know that this is happening and would not necessarily be able to get hold of these forms in the time frame required. Those are the two extra questions I would like a response to.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Murray has a whole host of questions. I will try to deal with them in order. If I forget any, I am sure that he will jump up and remind me of them. The Workplace Authority is required to have particular consideration for employers and employees with language difficulties. That would be taken care of, I am advised, by the overall legislation in the way that we deal with those matters. It will be a requirement of the employer to provide the forms to the employee, but they will also be available from the Workplace Authority and over the internet.

In relation to proposed changes to the fact sheet, as I understand the situation, it is not contemplated at this stage that regulations are necessarily needed but, in the event that it is seen as necessary to make changes to the fact sheet for whatever reason, we believe that regulation, which would be a disallowable instrument, would be the most effective and expeditious way of doing it. Keep in mind that section 154A contains the requirements for what the fact sheet deals with—and I read some of those matters out—such as information about the Australian Fair Pay and Conditions Standard, protected award conditions, the fairness test and the roles of the Workplace Authority Director and the Workplace Ombudsman.

Going back to the issue of those who may have language difficulties, I understand that currently eight languages are specifically serviced: Arabic, Chinese, Greek, Italian, Korean, Macedonian, Spanish and Vietnamese. Then there are 24 other languages that have a notification simply referring people to a translation service. There are a whole host of those languages. I may have said ‘24 other languages’ but, looking at the list, I can see that the eight languages I referred to before are included in the 24 languages that have a reference to a translation service if people want to avail themselves of one.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I am a little bit unclear now. I thought that you were confirming that this amendment does not require the fact sheet to be provided to employees at the time of making the agreement as long as it is provided within seven days of the commencement of employment. But then you talked about an information sheet which would be provided at the time of making the agreement. There were some issues in the chamber earlier which resulted in our not having access to your amendments and explanatory memorandum until rather recently, so I may have missed this, but I cannot find any reference to an information sheet as distinct from the fact sheet in the explanatory memorandum. If there is, can you point me to it so we can work out what the difference is and how it is intended they will operate.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I refer the honourable senator to section 337, entitled ‘Providing employees with ready access and information statement’. Section 337 is part of division 4 of the act, which deals with prelodgement procedures. Section 337 goes on for pretty well two pages. I will not bore the Senate by reading out all those provisions simply to confirm to the honourable senator that, if he was more anxious to see the good things in this legislation and spent his time studying it, he might not be up on his feet so often criticising it in the circumstances that he now finds himself in.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I just want to confirm one thing now, although I do have a range of further questions arising out of the contribution of the minister over the committee stage thus far. Has the government reprinted a consolidated version of this legislation subsequent to its most recent episode in December? If so, I am very pleased to hear that. I am not sure if Senator Marshall wanted to go back to this issue, but I have other questions in relation to this.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You move on and I’ll come back to it.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Thank you. I wanted to ask a number of questions about penalty provisions. Is there a penalty for an employer who seeks to impose an agreement—for example, a condition of employment—that subsequently fails the fairness test? That is the first question.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It is a bit of a sad reflection, isn’t it, when a person who has carriage of this legislation in this chamber is asking when the consolidated legislation may have occurred? You would have thought that, if somebody had a burning interest and desire to know about this topic, they would have known that the consolidated legislation had been around for over six months. The reprint was done on 15 December 2006. This is just another example of the degree of sloppiness that we unfortunately find from those opposite.

The penalty that might apply to an employer whose agreement is found to be not fair is that the agreement is void, and the entitlements that the employee would have otherwise been entitled to are fully recoverable by either the Ombudsman or the employee. We have arrangements in place that would assist and facilitate the employee in doing that through the Workplace Ombudsman.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Again, as is so often the case, Senator Abetz does not answer the question.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It was 15 December; what is vague about that?

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Let us move on to what I was actually asking, which is about the penalty provisions. I understand that you are saying that an employer in that position faces a voiding of the agreement and the employee can recover the entitlements which would be owed otherwise under the relevant award because the agreement is not there. But that is not the same as a civil penalty provision; correct?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Correct.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Interesting. What we have here is a government that says: ‘We’re going to fine employers, including small business people, for failing to provide employees with one of our documents but we are not going to provide any penalty if they put in place a dodgy agreement.’ It is really clear what your political and policy priorities are. Has the government undertaken any regulation impact study or issued a regulation impact statement in relation to the requirement on employers to provide this information, and in particular have they done one for the small business sector?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

In relation to dodgy agreements, if there is duress involved then there is a penalty to be applied. In the event that people honestly make an agreement which is found to be not fair, then in those circumstances no advantage can be gained by the employer. I think that is a sensible and reasonable balance. In relation to a regulation impact statement for this particular provision, the real champions of small business and their employment capacity is very well known and acknowledged by the Howard government; we have championed their cause time and time again—just as much, might I add, as we have championed the cause of the working men and women of this country. It is interesting that the party that alleges it is the ‘champion of the Australian worker’ wants a regulation impact statement on the impact on small business. If we do not have this statement, what would the impact be on the Australian worker, on the Australian man and woman in the workforce? Here we are, with Mr Rudd trying to reinvent himself somehow as the ‘champion of small business’ and thereby forgetting all about the workers of this country, whereas we continually say that we have a balanced approach to these issues. We do champion the cause of small business just as we champion the cause of the working men and women of this country. That is why on occasions such as this we make an on-balance decision that, whilst this undoubtedly will have some—I would suggest minimal, but nevertheless some—impact on small businesses, not to have it, we believe, would have a greater impact on the working men and women of this country and we seek to protect them.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

The next issue relates to subsection (3). As I understand the minister’s answers, the fact sheet itself, although published in the Gazette, is not disallowable. Under section 154A(1), it is within the prerogative of the Workplace Authority Director to issue a fact sheet provided it contains the matters listed in subsection (2). What are potentially disallowable—although that obviously depends on the time frame between now and the election, which may be an issue—are ‘other matters relating to the content, form or manner of providing the workplace relations fact sheet’. That is in subsection (3). Essentially what the government is putting in place is the capacity to amend the fact sheet. Given how much this department and this portfolio spends on market research, will the minister rule out changes to the fact sheet as a result of market research or polling?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

In relation to anything that the government does, can I simply indicate and confirm to the honourable senator opposite that we have one test—and it is not the one that Mr Keating exposed the Labor Party as having, which is needing a focus group to know which side of bed to get out of the morning. We on this side of the chamber continually ask this one, simple question: is it in the national interest? That is our test. So in all those tough decisions on issues like changing the tax system—we knew it was unpopular—waterfront reforms and social welfare reforms we did not ask if they were popular; because, as we knew with the GST and other issues, if your concern was with short-term popularity you would not have touched them.

Our concern has been long-term nation building, and today this nation is starting to enjoy the dividends of that, with unprecedented wages growth in a low-inflationary environment with high employment and the lowest rate of industrial disputation since records have been kept. It is those sorts of factors that motivate us. I can assure the honourable senator that, if regulations and changes are made to the gazetted form, it will be with those tests in mind and not with the sorts of things that clearly take up a lot of time and interest on the Labor Party side.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

What an extraordinary contribution! This is a government—and we know this from Senate estimates—that spends millions of dollars of taxpayers’ money on focus groups, testing their message. We know that the whole reason all of a sudden that ‘Work Choices’ is not being used anymore is that you know that your polling and your focus groups have told you that people do not like it. You come in here and say, ‘We act in the national interest’—this is an entirely politically driven bill. This is all about getting you out of trouble before the next election; that is the intention. And we know that millions of dollars have been spent on market research in this area and in others to try and get your message right.

Through you, Mr Chairman: the government cannot come in here and try and pretend that they are all about the national interest. What we have seen is the government testing their message—doing market research testing, using consultancies to a range of market research firms and focus groups. And what have they come up with? They have worked out: ‘We’ve got a little bit of a problem with Work Choices, so we’ll ditch the name, we’ll spend millions more dollars on more government advertising and we’ll come up with some “fairness” test that we’ll try and ride to the next election to pretend to the Australian people that we aren’t actually about people’s rights and entitlements being stripped away.’

I notice that, for all of the rhetoric that the minister engaged in, in response to my question, there is no ruling out of focus group testing, market research or polling in relation to the fact sheet and utilising that information for the purposes of amending it. It is a simple question: yes or no? And you do not rule it out.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I want to return to my earlier question. I am concerned that, with the best endeavours of the government, other political parties and the media, many small business people will be absolutely unaware that any of this is forecast or is intended. Yet this legislation imposes a new onus on employers, which, if not complied with, will result in their being subject to a penalty. So I want to confirm this: is it the intention of the government to supply every business that has to comply with this law with enough fact sheets, or with a fact sheet at least, so that they know that it is a requirement once these provisions become law? If the onus is on the employer to get the form, I can see large numbers who will not get it and will be extremely annoyed if they get fined or whatever.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I think Senator Murray makes the very important point that, in circumstances such as that, it is vital and it is appropriate for governments to undertake information campaigns to indicate to people what their requirements are under law. That is why governments of all persuasions, all colours, engage in information campaigns. We will be seeking to ensure that all employers are made aware of their requirements under the changed provisions.

Question put:

That the amendment (Senator Abetz’s) be agreed to.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

by leave—I move government amendments (7) and (8) on sheet PJ379 together:

(7)    Schedule 1, item 1, page 7 (lines 14 to 21), omit paragraph 346E(1)(b), substitute:

             (b)    on the date of lodgment:

                   (i)    the employer bound by the AWA is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the employee; or

                  (ii)    the employee whose employment is subject to the AWA is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and

(8)    Schedule 1, item 1, page 8 (lines 11 to 19), omit paragraph 346E(2)(b), substitute:

             (b)    on the date of lodgment:

                   (i)    the employer bound by the collective agreement is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the one or more of the employees; or

                  (ii)    one or more of the employees whose employment is subject to the collective agreement is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employees are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and

These amendments would amend proposed section 346E of the bill as introduced to make clear that workplace agreements would be subject to the fairness test where, immediately before the date on which the agreement is lodged, the employer was actually bound by an award in respect of the kind of work performed by the employee. The amendment is necessary to avoid any suggestion that the fairness test would not apply where an employer is bound by an award but in circumstances where the employee is employed in an industry or occupation that is not usually regulated by an award.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (3), (6), (8) and (18) on sheet 5285 together:

(3)    Schedule 1, item 1, page 5 (lines 16 to 24), omit the definition of salary in subsection 346B(1).

(6)    Schedule 1, item 1, page 7 (line 9) to page 8 (line 25), omit section 346E and the note, substitute:

346E  Workplace Authority Director must apply the fairness test to all workplace agreements

                 The Workplace Authority Director must decide under section 346M whether every AWA and collective agreement lodged after 27 March 2006 passes the fairness test.

(8)    Schedule 1, item 1, page 10 (line 3) to page 15 (line 17), omit sections 346G to 346L.

(18)  Schedule 1, item 1, page 17 (lines 16 to 23), omit paragraphs 346N(3)(a) and (b), substitute:

             (a)    before the Workplace Authority Director decides whether a workplace agreement passes the fairness test, a variation was lodged, the Workplace Authority Director is required to decide whether the workplace agreement as varied passes the test;

These amendments relate to the fairness test as it applies to all workplace agreements. They rewrite subdivision B, essentially providing that the Workplace Authority Director must apply the test to all workplace agreements lodged after 27 March 2006. The amendments also remove the date limit in the bill of 7 May 2007 and the salary limit for AWAs of $75,000. My first question is: does the government, by moving the bill, now acknowledge that there were agreements lodged between 27 March 2006 and 7 May 2007 which are unfair and which in fact would not pass the fairness test?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The government opposes the Greens amendments. These amendments seek to apply the fairness test to all agreements made since 27 March 2006 and would also remove the salary cap of $75,000. Without any disrespect to the Greens amendments, I think I covered both those issues in my second reading summing up of why the government has put in these relevant provisions. The vast majority, 90 per cent, of employees earn $75,000 or less. Those that earn more largely are not on awards.

In relation to the fairness test and trying to reopen situations where people may have moved on from employment, where they may no longer be with us or where the business may no longer be in operation, even the shadow spokesperson on industrial relations, Ms Gillard—in one of those rare lucid moments—acknowledged that it would not be appropriate to try to wind back the clock before 7 May. So on this occasion I can even rely on Ms Gillard in support of the argument. It should not be seen as a sign of desperation by the government when we rely on those opposite—

Rod Kemp (Victoria, Liberal Party) Share this | Link to this | Hansard source

It is a nasty precedent.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It is a dangerous precedent, Senator Kemp, I agree. But in the spirit of goodwill that exists in the chamber, I do like to point out the commonality that from time to time exists between the opposition and the government.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The problem now, of course, is that we have employees who will be on an AWA that could be unfair under the new system. The other question I have is about part-time workers whose wages are based on a full-time equivalent. My understanding is that if the full-time equivalent wage is over $75,000 but they are working part-time, which means their pay is in effect less, they are not covered under this fairness test.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

These are the Australian Greens amendments. I thought that those proposing amendments should have questions to discover what the amendments are about asked of them. In relation to the matter that the senator quite rightly raises, we have determined that it should be on a pro rata basis, so that if somebody were earning, say, $40,000 part-time but the full-time equivalent were $80,000 then they would not be covered.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I place on record that Labor will not be supporting these amendments. Whilst we appreciate the sentiments of Senator Siewert and the Greens amendments, our view is, firstly, an in-principle difficulty with retrospectivity, but more importantly we believe that the only way to deal with the inherent unfairness in Work Choices is to elect a Labor government and to have the act repealed and a new act in place consistent with Labor’s policy.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I too, on behalf of the Australian Democrats, will not be supporting those amendments which seek to make legal agreements retrospective. I have sympathy for the point made by Senator Siewert, because the legislation does introduce a situation where there are two classes of employees—those with better conditions under the new fairness test and those with conditions that applied previously—but in law it is extremely unwise to introduce an unwinding of an existing contract unless both sides agree. Of course, it is still open for employers and employees to do that and to pursue a new agreement.

However, Mr Chairman, I ask you to put the question with respect to the $75,000 salary cap separately. Whilst I disagree with retrospectivity, I agree that there should be no cap. I find the cap arbitrary. For instance, in its latest rendition of the tax rates, the government has decided that $80,000 will be the upper level of middle-income earners. We supported that particular movement. They have shifted the tax threshold from $75,000 to $80,000. I do not know what $75,000 attaches to. It seems to be an arbitrary cut-off and I think it will result in some disadvantages which should not be there. I think it would be preferable if there were no cap or if the cap were articulated properly, which it has not been. So I would appreciate it if that particular amendment could be put separately from those which make for retrospectivity.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Senator Murray, before you resume your seat, would you point us to the number of the specific amendment you are referring to. We have not had the chance to pick that up.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

As I understand it, amendment (3) omits the definition of salary and would get rid of the cap.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

So you are seeking that when we put those amendments we put (3) first and then (6), (8) and (18) on sheet 5285; is that correct?

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Yes.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

That will be done. The question, therefore, is that Greens amendment (3) on sheet 5285 be agreed to.

Question negatived.

The question now is that Greens amendments (6), (8) and (18) on sheet 5285 be agreed to.

Question negatived.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

by leave—I move government amendments (9) and (10) on sheet PJ379:

(9)    Schedule 1, item 1, page 8 (line 33) to page 9 (line 3), omit paragraph 346F(1)(b), substitute:

             (b)    on the date of lodgment of the variation:

                   (i)    the employer bound by the AWA as varied is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the employee; or

                  (ii)    the employee whose employment is subject to the AWA as varied is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employee are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and

(10)  Schedule 1, item 1, page 9 (lines 28 to 36), omit paragraph 346F(2)(b), substitute:

             (b)    on the date of lodgment of the variation:

                   (i)    the employer bound by the collective agreement as varied is bound by an award in respect of the terms and conditions of the kind of work performed or to be performed by the one or more of the employees; or

                  (ii)    one or more of the employees whose employment is subject to the collective agreement as varied is employed in an industry or occupation in which the terms and conditions of the kind of work performed or to be performed by the employees are usually regulated by an award, or would, but for a workplace agreement or another industrial instrument, usually be regulated by an award; and

In moving those amendments, I note that they would amend section 346F of the legislation. The reasons for those amendments are exactly the same as the reasons enunciated for government amendments (7) and (8). We have already dealt with those, so I will not the delay the Senate any further other than to note that if these amendments are carried, then I assume the next Australian Greens amendment would be obviated.

Question agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I seek leave to withdraw Greens amendment (7) on sheet 5285.

Leave granted.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

There is a minor change in the groupings on the running sheet. We consider there are essentially five bundles or groups of amendments being moved by the opposition. The first is in relation to award conditions and removing the $75,000 threshold, the second relates to full compensation rather than fair compensation, the third relates to the review of decisions and reasons for decisions, the fourth relates to Good Friday and Christmas Day and the fifth relates to Anzac Day. In relation to the first group, I seek leave to move amendments (1) to (13), (22)—

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Senator Wong, I am looking at the running sheet that I have—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I am indicating to you, Mr Chairman, that the running sheet bundling is not the order in which I am seeking to move them. I am trying to go through this slowly. Shall I start again?

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Yes.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The chair is from Queensland, you need to go very slowly!

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I think Senator Murray is not going to get the call again in this debate.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Senator Murray, I would remind you that your chair duty is being done by a senator from Queensland who graciously filled in for you. Anyway, we will come to that at some other stage.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I withdraw!

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Thank you, Senator Murray. I am glad peace has broken out. Senator Wong has the call.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Thank you, Mr Chairman from Queensland. I move opposition amendments (1) to (13), (22), (24), (25), (27), (30) and (34) to (46).

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Senator Wong, it has just been drawn to my attention that you will have to leave (10) out of that because, if you look on the next page of the running sheet, you will see (10) is there. So it would be (1) to (9) and (11) to (13). You can speak to the bundle, but I will put (10) separately at another stage.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) to (9), (11) to (13), (22), (24), (25), (27), (30) and (34) to (46) on sheet 5295 revised:

(1)    Schedule 1, item 1, page 4 (lines 28 and 29), omit the definition of protected award conditions in subsection 346B(1).

(2)    Schedule 1, item 1, page 5 (lines 16 to 24), omit the definition of salary.

(3)    Schedule 1, item 1, page 5 (lines 25 to 32), omit subsection 346B(2) and the note.

(4)    Schedule 1, item 1, page 6 (lines 1 to 16), omit “protected” (wherever occurring).

(5)    Schedule 1, item 1, page 6 (line 17), omit “protected”.

(6)    Schedule 1, item 1, page 8 (lines 1 to 23), omit “protected” (twice occurring).

(7)    Schedule 1, item 1, page 7 (lines 22 to 35), omit paragraph 346E(1)(c).

(8)    Schedule 1, item 1, page 9 (lines 18 to 40), omit “protected” (twice occurring).

(9)    Schedule 1, item 1, page 9 (lines 4 to 17), omit paragraph 346F(1)(c).

(11)  Schedule 1, item 1, page 14 (line 2), omit “paragraphs 346E(1)(a), (b) and (c)”, substitute “paragraphs 346E(1)(a) and (b)”.

(12)  Schedule 1, item 1, page 14 (lines 14 and 15), omit “paragraphs 346F(1)(b) and (c)”, substitute “paragraph 346F(1)(b)”.

(13)  Schedule 1, item 1, page 15 (line 20) to page 16 (line 10), omit “protected” (wherever occurring).

(22)  Schedule 1, item 1, page 24 (lines 24 and 25), omit “, to the extent that the designated award contains protected award conditions”.

(24)  Schedule 1, item 1, page 28 (lines 12 and 13), omit “, to the extent that it contains protected award conditions”.

(25)  Schedule 1, item 1, page 28 (line 13), omit “protected”.

(27)  Schedule 1, item 1, page 31 (lines 10 to 19), omit “protected” (wherever occurring).

(30)  Schedule 1, item 8, page 33 (line 24), omit “certain protected”.

(34)  Schedule 1, item 41, page 41 (lines 10 and 11), omit paragraph 25B(1)(c).

(35)  Schedule 1, item 41, page 41 (lines 15 and 16), omit paragraph 25B(1)(d), substitute

             (d)    a reference in that Division to award conditions were a reference to preserved conditions; and

(36)  Schedule 1, item 41, page 41 (lines 20 to 24), omit paragraph 25B(1)(f), substitute:

              (f)    section 346C was substituted with:

                      “For the purposes of this Division, preserved conditions are taken to apply under a preserved State agreement in relation to an employee if the employee’s employment is subject to a workplace agreement.”; and

(37)  Schedule 1, item 41, page 41 (lines 25 and 26), omit paragraph 25B(1)(g).

(38)  Schedule 1, item 41, page 41 (lines 32 to 37), omit the words from “(b) if there is” to and including “agreement.”, substitute “(b) if there is no instrument of the kind referred to in paragraph (a) in relation to the employer and one or more of the employees—preserved conditions in relation to the employee.”.

(39)  Schedule 1, item 41, page 42 (line 6), omit “protected”.

(40)  Schedule 1, item 41, page 42 (line 10), omit “protected”.

(41)  Schedule 1, item 41, page 42 (lines 16 and 17), omit the definition ofprotected preserved condition in subclause 25B(3), substitute

preserved condition means a term of a State award or a provision of a State or Territory industrial law, as in force immediately before the reform commencement, that would have determined a term or condition of employment of a person, had the person been employed at that time and that employment not been subject to a State employment agreement.

(42)  Schedule 1, item 41, page 42 (lines 23 to 31), omit subclause 25B(4) and the note.

(43)  Schedule 1, item 42, page 43 (lines 11 and 12), omit paragraph 52AAA(1)(c).

(44)  Schedule 1, item 42, page 43 (lines 16 and 17), omit paragraph 52AAA(1)(d), substitute:

             (d)    a reference in that Division to award conditions were a reference to notional conditions; and

(45)  Schedule 1, item 42, page 43 (lines 32 and 33), omit the definition of protected notional conditions in subclause 52AAA(2), substitute:

notional condition means a term of a notional agreement preserving State awards.

(46)  Schedule 1, item 42, page 44 (lines 3 to 10), omit subclause 52AAA(3) and the note.

Very briefly, these amendments deal with the definition of protected award conditions and various other matters, including the effect of the agreement passed as the review. Amendments (34) to (36) deal with protected award conditions. Fundamentally, the principle behind these amendments is that Labor believes that all award conditions should be protected, not just some. That is the thrust of this range of amendments. They go to the heart of one of the distinctions between Labor and the government—that is, we think award conditions are actually worth protecting. Apparently the Howard government does not, so I urge the Senate to consider these amendments.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

When you refer to ‘protected award conditions’, as I read your amendments and as I recall the provisions in the act, that refers to awards that were previously state as well as those that are federal. Is that correct?

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

That is correct.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I have a concern with these provisions but sympathy for them. My concern is that a number of the states had unlimited award allowability—the award was constructed with whatever the parties agreed should be in it whereas the federal system was much more constrained and confined to 20 allowable matters. I support the intention of the opposition fully with respect to federal awards—I think they should be fully covered—but my memory is that some state awards probably expanded unnecessarily into extraneous matters. Essentially, you are arguing that there should be no disadvantage across the award. That is so, isn’t it?

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I would refer you to the approach that Labor has set out in its released policy on this, which does look at the simplification and the rationalisation of a range of award conditions. I suppose we are taking a view about what is the best thing to do between now and the election. If Labor were elected, clearly we have a policy in place which would deal with the issues you raise—with what you described as ‘extraneous’ award conditions. Can I indicate also that I neglected to refer in my comments on these amendments to the amendment which deals with one of the provisions dealing with the $75,000 salary threshold, which in part is dealt with by amendment 10, which will be moved later but is also dealt with by amendment 11, which is an amendment to 346E(1)(a), (1)(b) and (1)(c). One of the concerns is in relation to (iii) of subsection (1)(c) and the minister may want to comment. As I read it—it is on page 7 of the bill—this refers to an employee for whom the annual full-time equivalent salary payable is less than $75,000. I assume that means that, if you are on a couple of weeks work or you are on a part-time salary but your full-time equivalent exceeds $75,000, the test does not apply to you. I wonder whether the minister could confirm that, because dealing with that issue was the intention of the amendment.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I would refer the honourable senator to clause 346G ‘Provisions about annual rate of salary’. That would be pro-rata to a full-time equivalent situation. I think Senator Siewert asked a similar question previously in this debate, and I gave that answer then.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that opposition amendments (1) to (9), (11) to (13), (22), (24), (25), (27), (30) and (34) to (46) on sheet 5295 revised be agreed to.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The next question refers to opposition amendment (10) on sheet 5295 revised. The question is that section 346G stand as printed.

Question agreed to.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

by leave—Because there was no division, I request that the chamber record that the Democrats supported the opposition amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I request that the chamber record that the Australian Greens supported the opposition amendment.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

Those requests are noted.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1), (2), (4), (9), (10), (12), (13 ), (26) and (27) on sheet 5285:

(1)    Schedule 1, item 1, page 4 (lines 14 to 17), omit all words from and including “346L, and” to and including “section 346L”, substitute “346F”.

(2)    Schedule 1, item 1, page 4 (lines 28 and 29), omit the definition of protected award conditions in subsection 346B(1).

(4)    Schedule 1, item 1, page 5 (lines 25 to 32), omit subsection 346B(2) and the note.

(9)    Schedule 1, item 1, page 15 (line 24), omit “protected”.

(10)  Schedule 1, item 1, page 15 (line 25), omit “that apply to the employee”, substitute “in the reference award”.

(12)  Schedule 1, item 1, page 15 (line 31), omit “protected”.

(13)  Schedule 1, item 1, page 15 (lines 31 and 32), omit “that apply to some or all of those employees”, substitute “in the reference award”.

(26)  Schedule 1, item 1, page 31 (line 11), omit “protected”.

(27)  Schedule 1, item 1, page 31 (line 16), omit “a protected award condition”, substitute “award conditions”.

I am aware that some of these amendments overlap with the opposition’s amendments. These amendments will delete references to ‘protected award conditions’ and provide for the fairness test to consider all award conditions in the reference award. I indicated in my speech on the second reading that I would move these types of amendments. The government’s formulation of the fairness test leaves out many award conditions that are important to employees, such as redundancy pay, long service leave, rostering provisions and other working hour provisions, casual leave, casual loadings that are more than 20 per cent, any rights to request flexible working conditions, and paid maternity leave. These conditions affect employees’ work and family lives and we believe they should be considered.

We believe what is considered in the fairness test goes directly to the different views about what should constitute a safety net. Work Choices provides a set of five minimum conditions and another list of award conditions that may or may not provide a safety net, depending on an employee’s circumstances. The Greens believe in a strong and robust safety net based on the award system that applies to all employees. We believe that these amendments go to making the safety net a stronger safety net, as in the title of this bill.

Question negatived.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

The question now is that section 346C stand as printed.

Question agreed to.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

by leave—I move opposition amendments (14) to (18):

(14)  Schedule 1, item 1, page 15 (line 22), omit “fair compensation”, substitute “full compensation”.

(15)  Schedule 1, item 1, page 15 (line 28), omit “fair compensation”, substitute “full compensation”.

(16)  Schedule 1, item 1, page 16 (lines 1 and 2), omit “fair compensation”, substitute “full compensation”.

(17)  Schedule 1, item 1, page 16 (lines 11 and 12), omit “fair compensation”, substitute “full compensation”.

(18)  Schedule 1, item 1, page 16 (lines 22 and 23), omit “fair compensation”, substitute “full compensation”.

This set of amendments relates to Labor’s desire to provide full compensation, not just fair compensation. I note that one of the issues that has been raised in relation to the drafting of this bill is the failure to include a clear definition of ‘fair compensation’. There are provisions which set out what must happen when an agreement passes the fairness test and there is a definition, for example, in relation to non-monetary compensation. Maybe the minister can explain why there is not a clear definition of ‘fair compensation’.

But the reality is that the government is not committed to providing any compensation for certain types of conditions of employment—things like redundancy pay or rostering protections. And it is clear from this bill and from the government’s statements relating to it that the government is not committed to providing full compensation for employees who lose their overtime and penalty rates, shiftwork allowances, rest breaks and public holiday pay. Therefore, within these amendments we are moving a requirement to provide full compensation for the loss of award conditions. In essence, these amendments replace the term ‘fair compensation’ with ‘full compensation’ in all provisions relating to the fairness test. The effect of this will be that employees’ terms and conditions are protected in their entirety, something the Howard government is not prepared to do. Where these conditions are excluded or modified in an agreement, an employee will be entitled to full compensation for their loss, rather than something less than that.

These amendments by Labor are to ensure that protected award conditions cannot simply be eroded away. They will provide clearer guidance to the Workplace Authority Director about what is required of him or her when conducting the fairness test. They will also provide certainty for Australian employers and employees about their obligations and entitlements, given the potentially vague implications of the fairness test which have been alluded to in the second reading debate and in other places.

Just while I am on my feet, can I say that it is interesting to recall the debate in the chamber on the second reading of the initial Work Choices legislation, when the government actually voted against putting ‘fairness’ into the objects of the act and into the provisions governing the determinations of the Fair Pay Commission. When I asked Senator Abetz during that debate why the government was doing that, he said:

You can have fairness without actually saying it.

Clearly, under the Howard government, that is just another piece of rhetoric. We know that this legislation is unfair. We do not think it is appropriate that there is less than full compensation for employees who lose overtime and penalty rates, shiftwork allowances, rest breaks and public holidays. And we think that provisions such as redundancy pay and rostering protections ought be subject to full compensation.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I must say from a purely policy perspective I have been a bit concerned at the direction in which compensation arguments have gone and I hope that if the law ever gets rewritten following the election this issue will be better dealt with than at present. I have always rather liked the Australian Constitution’s phrase of ‘compensation on just terms’. I have found ‘fair’ as a word in law quite difficult to use with respect to compensation, as is the word ‘full’, because the question is: when is it full, or when is it fair? These become difficult issues. Frankly, it would have been better if ‘compensation’ had merely been left without a qualifying adjective so it could be developed under jurisprudence in terms of administrative law. But that is a problem that people better qualified than I in the law can remark on at length.

The point I want to make with respect to the problem the amendments are trying to fix is that the issue of compensation is not resolved by the government’s legislation. The opposition’s amendments are trying to address a problem which exists in the starting legislation. I do not think the determination of compensation is going to be as easy as people think, either under the government’s proposals or under the opposition’s.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

In relation to the fairness test, those matters are outlined in the legislation in clause 346M under the heading ‘When does an agreement pass the fairness test?’ There are nearly two pages of detail. I will not read out the whole of those two pages or thereabouts, but it is important to put the particular part dealing with non-monetary compensation on the record:

... non-monetary compensation, in relation to an employee, means compensation (other than an entitlement to a payment of money):

(a) for which there is a money value equivalent or to which a money value can reasonably be assigned; and

(b) that confers a benefit or advantage on the employee which is of significant value to the employee.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

We can read.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

That is reassuring; if you can read, I invite you to actually read it. If you had done so, you would not have continued to seek to mislead the Australian people about the provisions of our legislation. In relation to the fairness test, we are seeking to get a balance between that which is required to protect employees and that which will allow employees to have a degree of flexibility. That is why the government opposes the proposed amendment. The amendment is mischievous in seeking to imply that anything less than full compensation is not fair compensation. This is a bit of a semantic issue and, with respect, not necessarily one of substance.

To ensure bargaining results in fair outcomes, the fairness test will provide that protected award conditions can be traded in exchange for fair compensation. The legislation contains detailed provisions about how fair compensation is to be determined. Importantly, the fairness test allows the real value of non-monetary entitlements to employees to be taken into account. It does this by defining non-monetary compensation as compensation that confers a benefit or advantage on an employee which is of significant value to the employee. That is where those on the other side and the government disagree. We believe in flexibility and we believe that what may be fair and reasonable has to be weighed up in the particular circumstance of each individual employee, and it may vary quite considerably. Something may be of real value, for example, to a single parent who has no other family help in relation to children. To be able to pick up a child from school may be of absolute, vital importance whereas to another employee it may be a convenience but not a necessity. So each individual circumstance needs to be taken into account. That is the sort of flexibility that we have sought to bring to the legislation. It is the flexibility which, I note, those opposite condemn and oppose. That is fair enough, but we have seen the benefits of a flexible workplace system with more and more of our fellow Australians gaining employment. We do not want to see that compromised.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

For the record, the Democrats and I do support flexibility. We recognise that employment arrangements vary by enterprise. That is why we support enterprise bargaining. We recognise that employment arrangements vary by particular individual agreements as well. So we do support flexibility. What the opposition are trying to do, as I understand it, is ensure that ‘fair’ is also ‘full’, and they see a difference between the two. They have not put in a provision to delete all the other tests you have put with respect to compensation, monetary or non-monetary; they have merely said that ‘fair’ does not go far enough and ‘full’ goes further. I have difficulty with both words, as I have said. I prefer the ‘just terms’ sort of approach but I understand what the government is trying to do. But I did want to put on record that we do support flexibility; we always have and we will continue to do so.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I am sure the minister does not want a history lesson on which party first introduced enterprise bargaining into Australia. I make three points. The first is that by opposing this amendment the government has made it very clear that it believes Australian employees should not be fully compensated for the trading away of protected award conditions. The second point is in relation to the sole parent issue. I am not sure what point the minister is trying to make there; are we really suggesting that someone’s worth at work should be determined by their personal circumstances and that somehow, for example, the sole parent in that situation could have to give away more to get that provision because that is worth more to her or him than somebody who did not require the time to pick their children up from school? This is the problem with the way in which you are approaching this. The third point relates to the minister’s comments about semantics. This is from a government that says, in television ads, newspaper ads and a booklet, ‘protected by law’ in relation to conditions that can be traded away. So do not come in here, Minister, and lecture us on semantics.

Question put:

That the amendments (Senator Wong’s) be agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (11), (14), (15), (16) and (17) on sheet 5285.

(11)  Schedule 1, item 1, page 15 (lines 27 and 28), omit “, on balance, the collective agreement provides fair compensation, in its overall effect on the employees”, substitute “the collective agreement provides fair compensation to each employee”.

(14)  Schedule 1, item 1, page 16 (lines 1 to 29), omit subsections 346M(2) to (5).

(15)  Schedule 1, item 1, page 16 (after line 35), after subsection 346M(6), insert:

     (6A)    The employer, the employees and their representatives and the unions party to an agreement must be advised of and have the opportunity to verify or refute information provided to the Workplace Authority Director under subsection (6) in relation to the agreement that covers the employer, employees or would bind the union.

(16)  Schedule 1, item 1, page 16 (line 36) to page 17 (line 6), omit subsection 346M(7), substitute:

        (7)    In this section:

fair compensation, in relation to an employee, means the provision of an additional benefit or advantage that:

             (a)    is of significant and immediate value (whether financial or otherwise) to the employee; and

             (b)    fully compensates the employee for the exclusion or modification of the relevant conditions.

(17)  Schedule 1, item 1, page 17 (after line 6), after section 346M, insert:

346MA  Workplace Authority Director to provide reasons for decisions

        (1)    If the Workplace Authority Director makes a decision in accordance with section 346M, the Workplace Authority Director must provide a written statement of reasons for that decision to:

             (a)    the employer in relation to the workplace agreement;

             (b)    if the workplace agreement is an AWA—the employee whose employment is subject to the AWA;

             (c)    if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

        (2)    A party to a workplace agreement which has been subject to a decision made in accordance with section 346M may appeal to the Federal Magistrates Court for a review of the decision in accordance with the Administrative Decisions (Judicial Review) Act 1977.

These amendments are about the application of the fairness test. Because they are slightly different, I will speak to each one. Amendment (11) is about how the fairness test applies to collective agreements. The amendment provides that collective agreements past the test only when no employee loses conditions without compensation. Under the bill, a collective agreement is assessed to have its overall effect, which means some employees could be worse off with no fair compensation. I have a question there about why it is considered fair if individuals are not also better off.

Amendment (14) is the deletion of matters to be taken into consideration. This amendment deletes the subdivision that allows the Workplace Authority director to take into consideration employees’ personal circumstances and a business’s industry location or economic circumstances. With personal circumstances, there is an issue that allows for discriminatory outcomes, with no review of decisions. This type of provision is open to abuse, with vulnerable employees being exploited—and we touched on that earlier. On the circumstances of the business, we do not believe that what we see as a core condition should be traded away for anything less than fair compensation and that the state of a business, particularly in terms of industry or location, should be taken into consideration.

Amendment (15) provides that, if the Workplace Authority Director obtains information under subsection 346M(6), such information must be provided to the other parties of the agreement to be verified or refuted. It is a matter of general principle that, if someone is making a decision that materially and, in particular, detrimentally affects a person, that person is entitled to know the information being considered and have an opportunity to reply.

Amendment (16) deletes the definition of ‘non-monetary compensation’ and puts in the definition of ‘fair compensation’. The definition is from Professor Andrew Stewart’s submission to the inquiry, and even in his submission he admits that it is not perfect but better than the current bill. We have also had a discussion about what is a definition of ‘fair compensation’. The amendment emphasises the need for benefits to be additional to those already enjoyed and to have immediate, rather than potential, value for the worker and to provide for full compensation.

Amendment (17) is an attempt to provide some accountability for the test. It provides for the Workplace Authority Director to provide written reasons and furnish them to the parties. It also provides for an appeal of a decision on the fairness test to go to the Administrative Appeals Tribunal. The subjective nature of the test without the accountability that comes with a review opens up the potential for unfair results. We need to understand the need for certainty and timeliness, but there is also a need to balance the fact that people’s livelihoods can be affected by these decisions. We believe a review process assists to ensure that the test is applied fairly, robustly and consistently.

All these items go to improving fairness and putting fairness into the fairness test. There are a number of items that we believe are unfair in this area and we are seeking to address them. As I said earlier, I would particularly like to know why it is considered fair if an individual loses out in a collective agreement under the overall effect provision, rather than ensuring that no employee is worse off without fair compensation.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

For the reasons I articulated previously, I confirm that the opposition will not be supporting these amendments. We understand the sentiments behind Senator Siewert’s amendments but, as I said, we think they go to issues where, really, this act cannot be cured by these sorts of amendments and we really need to put in place a different set of legislation. I will be clear that, on a range of the issues that Senator Siewert has outlined, we clearly share her concerns about the effect on these entitlements and conditions of employment for employees under the government’s legislation.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats do not support items (11), (14) and (15). We do support items (16 and (17).

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

For the record, the government opposes the Greens amendments. I think that a lot of the arguments have in fact been canvassed previously in relation to other aspects of this legislation.

Judith Troeth (Victoria, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (11), (14) and (15) be agreed to.

Question negatived.

The question is that amendments (16) and (17) be agreed to.

Question negatived.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

by leave—I move opposition amendments (19) to (21), (23), (26), (28) and (29) on sheet 5295 revised.

(19)  Schedule 1, item 1, page 18 (line 26), at the end of subsection 346P(5), add:

   ; and (c)    must state the reasons, by reference to the matters referred to in subsection 346M(1), (2), (3) or (4), for the decision of the Workplace Authority Director the subject of the notice.

(20)  Schedule 1, item 1, page 22 (line 27), at the end of subsection 346U(4), add:

   ; and (c)    the reasons, by reference to the matters referred to in subsection 346M(1), (2), (3) or (4), for the decision of the Workplace Authority Director the subject of the notice.

(21)  Schedule 1, item 1, page 24 (after line 6), after section 346X, insert:

346XA Effect if agreement passes review of fairness test

                 If:

             (a)    a workplace agreement is not in operation at the date of the review decision because of the effect of section 346W or 346R that the agreement did not pass the fairness test; and

             (b)    the Workplace Authority Director decides under section 346M on review that the workplace agreement passes the fairness test;

the workplace agreement commences operation on the date of issue specified in the notice of the reviewdecision under section 346ZI.

(23)  Schedule 1, item 1, page 27 (after line 11), after the note to section 346ZB, insert:

Note 2:  This section will operate subject to section 346XA.

(26)  Schedule 1, item 1, page 28 (line 32), at the end of subsection 346ZD(3), add:

           ; (d)    if the employee is entitled to compensation because of the operation of Subdivision G in respect of the workplace agreement—the period of 14 days beginning on the date of issue of the notice of the review decision under section 346ZI.

(28)  Schedule 1, item 1, page 31 (after line 21), at the end of Division 5A, add:

Subdivision G—Review of decision

346ZI Process for review of Workplace Authority Director decision

        (1)    If a notice has been provided by the Workplace Authority Director under section 346J, 346P or 346U and a person as defined in subsection (9) disagrees with the decision of the Workplace Authority Director contained in the notice, the person may notify the Workplace Authority Director of his or her objection and the reasons for the objection.

        (2)    The Workplace Authority Director must, by notice published in the Gazette, set out requirements for the form of a notice to be provided by a person under subsection (1).

        (3)    Any objection must be lodged in writing in the required form within 7 days of the date of receipt of the notice of the decision of the Workplace Authority Director.

        (4)    A copy of the objection must be provided to the other party or parties to the agreement within 7 days of receipt of the notice of the decision of the Workplace Authority Director.

        (5)    If an objection to a decision is lodged with the Workplace Authority Director, the Workplace Authority Director must review the decision and determine whether:

             (a)    under section 346E, the Workplace Authority Director must apply the fairness test to a workplace agreement; or

             (b)    the workplace agreement passes the fairness test in section 346M.

The outcome of the review is the review decision.

        (6)    In reviewing a decision, the Workplace Authority Director may do all things that the Workplace Authority Director may do in making the original decision.

        (7)    The Workplace Authority Director must provide notice of the review decision under section 346J, 346P or 346U to each party to the agreement and each person whose employment is subject to the agreement as at the date of the notice.

        (8)    A review decision has effect as if it was a decision under section 346E or 346M except that a person may not notify an objection in respect of a review decision.

        (9)    The persons who may disagree with a decision of the Workplace Authority Director are:

             (a)    the employer in relation to the workplace agreement; and

             (b)    each person whose employment is subject to the workplace agreement at the date of the notice; and

             (c)    any representative of a person in paragraph (a) or (b), including a registered organisation; and

             (d)    if the workplace agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

(29)  Schedule 1, item 1, page 32 (after line 9), after paragraph 337(4)(ca), insert:

           (cb)    information about the procedure for review of a decision by the Workplace Authority Director about the fairness test as set out in Subdivision G of Division 5 of Part 8 of this Act.

In the short time that we have before the break, let me say that these amendments deal with the issue that was raised by Labor in the second reading debate and which has also previously been raised in the public arena. I think it was also the subject of some discussion in the committee stage to date—that is, the lack of review associated with the government’s fairness test. It is an unreviewable process and, we say, a secretive process. Whether an agreement passes the fairness test is a decision which, under the bill, is to be conducted behind closed doors and largely at the discretion of the Workplace Authority Director. That essentially was confirmed by the minister today. As I understand it—and I am happy to be corrected—there is no formal appeal or review process. I think the minister answered that charge by saying that it is not a tribunal. That may well the case, but the point is that it is making decisions that are obviously relevant to people’s rights. To not have any process, or even reasons, for any decision made or a possibility of review—

Prior to the dinner break, I was outlining the reasons for Labor moving these amendments. They centre on the failure in the bill to ensure that there is openness and transparency in the assessment of an agreement. Our concern is that the fairness test is largely a decision to be conducted behind closed doors by a particular official. There is not a requirement to disclose the basis of the decision, such as the assumptions made, the information relied upon and the relative merits of clauses in the agreement weighed by the Workplace Authority Director in arriving at a decision that an agreement is or is not fair.

In addition, there is no opportunity for an employer or an employee to address information provided to the Workplace Authority by the other party as part of that process. I am not even clear on whether any natural justice requirements impinge upon the Workplace Authority’s determinations in this regard. I have to say that the minister’s contribution previously that this is not a tribunal really does not meet the argument. The point is that a decision is being made as to whether an agreement is in accordance with the act or not and whether it is therefore operative. A decision is made to weigh the relative merits of particular provisions in an agreement against the protected award conditions and other matters. We believe that an employee and an employer are entitled to have some transparency in that process.

In essence, we are moving a range of amendments which go to this issue. Our amendments relate to three key decisions that the Workplace Authority Director is required to make under the government’s bill: first, whether or not the fairness test is to be applied to a particular agreement; second, whether the agreement passes the fairness test; and, third, whether an agreement which has been varied passes the fairness test. For each of these agreements, the Workplace Authority Director should be required to provide a notice to the employer and employees who will be covered by the agreement setting out their decision.

Under Labor’s amendments, where the Workplace Authority Director is required to provide employers and employees with a notice in these circumstances, the Workplace Authority Director will also be required to provide in that notice details of how they reached the decision by reference to the criteria set out in the bill. Let us be clear. At the moment, as I understand it, there is a requirement to provide a notice. We are seeking for the notice to also provide details of how the decision was reached by reference to criteria set out in the bill. An example of this would be that, where a notice sets out whether an agreement passes or does not pass the fairness test, the notice must also detail how the Workplace Authority Director applied the factors relevant to the fairness test in proposed section 346M to arrive at a decision.

The rationale behind this is that this will enable an employer or employee upon receipt of a notice to see how the director arrived at the decision. It will bring some degree of transparency, consistency and accountability to the process. If the employer or employee disagrees with the decision or the reason for the decision, under our amendments, they will then be able to raise objections. There will be a time limit for the employer and employee to do this, which we have set out as within seven days of receiving such a decision. If such an objection is raised by the employer or an employee, the director will then be required to make the relevant decision, again taking into consideration the issues raised in the objections notice.

These amendments will go some way towards addressing some of the key failings of the government’s bill and the lack of transparency and accountability in this process and we hope that they would therefore increase the consistency in decision making. This would, in turn, make agreement making somewhat easier for employers and employees in Australia. If the government has the view that this is a test that can be applied consistently, it should not have any fear of amendments which seek to provide some transparency. As Senator Abetz knows, two of the reasons for transparent decision making are (a) to try to facilitate consistency, and (b) to ensure that a process is properly followed. In the absence of Labor amendments, we do have some concerns as to the lack of transparency contained within the government’s bill.

Of course, as I have outlined previously, whilst these amendments do go some way to addressing some of the key failings in this bill, particularly the lack of transparency and accountability in the process, we on this side of the chamber recognise that our amendments do not remedy the inherent unfairness and lack of balance in the government’s Work Choices legislation. As I have previously iterated in this place, the only way to fix Work Choices is to get rid of that legislation altogether and replace it with a modern, simple industrial relations system which is both balanced and productive.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

These amendments are very similar to the Greens amendments to provide transparency and accountability to the Workplace Authority Director. With regard to justice and fairness, there should be a requirement for the Workplace Authority Director to provide a written statement of reasons for that decision. While we will be supporting this amendment, we believe the Greens amendment was more comprehensive—surprise! This is a key part of the safety net and a fairness test. If somebody is being offered an AWA and that is going through the fairness test, they should be able to find out the reasons why it did or did not pass the test. There should also be appeal provisions. Again, it goes to transparency and accountability. We will be supporting this amendment.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The government opposes these amendments put forward by the opposition. I stress this again: the authority is not a tribunal and I think the Labor Party and the Greens—I do not know what the Democrats will be saying about this—are stuck in a situation where they think arguments will be conducted backwards and forwards in relation to a particular award. This is, in fact, an agreement between two parties. I think there is only concern from the employee’s point of view—that is all that the government in its legislation is concerned about in relation to the fairness test; that it is fair to the employee. Even if the Workplace Authority were to think that it is unfair to the employer, as I understand it, it is not something that the authority is to take into account. But the circumstances are that the employee has signed an agreement, that gets submitted to the authority and the request is that the authority accept it as a fair agreement. The employee is notified throughout the process. If the authority has found it to be fair, the parties will receive notification and it therefore comes into lawful effect. If it is deemed by the authority to be unfair, then the authority goes back to the parties and indicates to them why it believes the agreement is unfair and how that might be remedied.

The authority is not like a tribunal; it is like a safety valve or a safety net for the employee. The employee might have signed up saying, ‘This is a fair agreement to me; I like this agreement so therefore it can go forward to the Workplace Authority.’ However, the Workplace Authority, in putting its ruler of fairness over the document, may come to a different determination. To ask for reasoned decisions would introduce a layer of bureaucracy, work and unnecessary red tape. This is an extra security, a safety net measure for the employee after he or she has determined for themselves that the agreement is a fair one and they want it to go forward. I just do not understand how it could be said that there is a lack of transparency. It is not as though a judge is sitting on a case hearing arguments from both sides. In fact, the test is only applied from the employee’s point of view, as I understand the situation. The Workplace Authority will publish guidance material on the operation of the test and pre-lodgement advice will be available so the parties can have agreements checked in advance. Once an agreement is lodged, the parties will be notified at various stages of the process. This is set out explicitly in the legislation. In assessing an agreement, the Workplace Authority may contact the parties to discuss aspects of the agreement or obtain further information. If an agreement does not pass the fairness test, parties are notified and provided with advice about how the agreement can be varied to make it fair. The authority will also have the administrative capacity to reconsider its decisions when errors are drawn to its attention. So, with great respect to those opposite, I do not think any argument has been made out in support of the proposed amendments.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I listened intently—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

That is a first.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

That is a first—to your commentary in respect of this issue and particularly the point you make that these amendments are about ensuring that the employee’s position, to the extent that you can, is protected. Obviously if that is the case it has not been protected in the past. But I fail to understand the logic you then use to say that, if the focus is about protecting the right of the employee, why it is not possible to put in a provision that says that the Workplace Authority Director cannot or will not provide the employee with reasons why the provisions of an agreement are unfair. We are talking about agreements that apply in the main to people of non-English-speaking backgrounds. We know that from the Employment Advocate’s evidence in Senate estimates of the past that they have actually sent letters in English to people of non-English-speaking backgrounds who have had no capacity to comprehend what is in those letters. We know that there are a substantial number of workers in low-paid jobs and a lot of workers with limited education backgrounds who are dealing with the confrontation of these agreements on a daily basis.

If those workers do not know, if they are not told the circumstances under which an agreement is unfair, are you seriously expecting them to go to the Office of Workplace Services, to hire a lawyer, or to get an advocate from somewhere—on $300 or $400 a week? Are you seriously suggesting that that is available to them? You know as well as I do that, at the end of the day, they will be forced to accept whatever is told to them by the employer. But, if the circumstances are of such a character that there is unfairness identified by the Workplace Authority Director in an agreement, what is the logic that says you cannot tell the person who is being unfairly treated—particularly the employee, if that is who you are setting out to defend—where the unfairness is? On what you have just said, I cannot comprehend why you would take that position.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I thought I had explained it prior to Senator Campbell’s intervention, but clearly not sufficiently or not eloquently enough, so allow me to try again. In relation to this process an employee voluntarily signs an agreement, as does the employer, and it gets submitted to the Workplace Authority Director. The Workplace Authority Director then puts his or her ruler over the agreement. That ruler is called ‘fairness.’ It is a check, if you like, by an independent person, to ascertain whether a different set of eyes and a different mind, against certain criteria, determines that it is a fair agreement. In the event that it is fair, they will be notified that a determination has been made that it is fair—without any reasons given, but that it is deemed to be fair. In the event that it is deemed to be unfair, the parties will be contacted with suggestions and helpful hints. I may have to look at the actual terminology that is to be applied.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

It refers to ‘how the agreement could be varied to pass the fairness test’.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Thank you very much. The Workplace Authority Director then has to provide advice on ‘how the agreement could be varied to pass the fairness test (including by way of an undertaking)’. As a result, if you were provided advice as to how the agreement could be varied to pass the fairness test, it stands to reason that the unfairness originally must be pointed out and that the way to overcome that unfairness is by having other provisions in the agreement. So the parties would be told quite clearly why the agreement is deemed to be unfair.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

What happens if the director says it is fair, particularly when you take into account people’s personal circumstances and all those sorts of things, and the employee does not believe that it is fair? What you are saying is that the director’s word amounts to: take it or leave it, that’s it—no correspondence entered into. But what these amendments seek and what the Greens amendments sought to do is enable an employee to find out the basis on which the decision was made. It is not objective. You are taking into account industry circumstances, exceptional circumstances and personal circumstances, so it is subjective; it is not objective. Therefore, if the director makes a decision that it is fair, an employee may not feel it is fair and certainly deserves to understand why and be able to challenge that, particularly as it is so subjective.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Following on from Senator Siewert’s contribution, I make this point: under subsection 346P of the bill the requirement on the Workplace Authority Director is only to notify ‘the decision’—so, not the reasons—and, if it does not pass the fairness test, not to notify why it did not but to notify what would need to be done in order to remedy that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

They are different things, Minister.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Come on! This is just chronic.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I am happy to explain it in very simple terms. Let us be clear that what is being put in place here is a system where an error could be made by the director that the parties are unaware of in terms of their determination as to whether an agreement is fair. There might be an error with how they have calculated something, or with what the value of a rostering provision might be, or they might have based the decision on information provided by one party but not the other. So it is quite possible under this process that, within the Workplace Authority Director, a decision is made based on an error and, because there is no requirement in the legislation for the reasons for the determination that an agreement is fair or unfair to be disclosed, that may not even be something of which the parties are aware. What is being argued for here is a situation where the determination as to whether something is fair or unfair does not have to be explained. The minister says that, because they have to tell them how to vary it, that somehow will disclose why it is unfair. That may be the case. I suggest to the minister that they are actually different requirements. You might be able to glean from what you have to change what the director has relied on for the purposes of determining unfairness, but they are not the same sets of information. But, even if we accepted your argument that that subsection does require the reasons for something being unfair to be disclosed, the question arises: why don’t you require that of an agreement that is found to be fair? You cannot have it both ways.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

What?

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Would you like me to explain it simply, Senator Abetz? What you are saying is: ‘It is fine; we don’t have to ensure that people are actually told why an agreement is fair. We don’t have to give those reasons or the rationale.’ In fact, it is quite possible the decision could be based on information or a calculation that is incorrect or on ascribing more weight than is warranted to the personal circumstances of an employee and the employee may never know. These are all issues that are beyond what is given to the industrial parties—to the employer and employee.

You scoffed—which seems to happen regularly—when I suggested that, regarding section 346P(3), advice as to how the agreement could be varied to pass the fairness test was not the same thing as giving reasons for why the agreement was found to be unfair. I make two points about that: first, they are in fact different sets of information. It is possible, I would think, to glean from what has to be varied why it was unfair, but they are not the same sets of information. The second point was that, if you assert it is the same set of information—it is in effect giving reasons for unfairness—then the question arises: what is wrong therefore with requiring the rationale for a determination of fairness to be provided? What is so difficult or inappropriate or improper in actually telling workers and employers why an agreement is fair and why it is unfair? Why are you so afraid of that?

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I would like to ask that these amendments be separated so that the ‘reasons amendments’ can be put separately to the ‘review amendments’. The reasons amendments are items (19) and (20) and the rest pretty well cover the review provisions. I think the reasons amendments, as I may describe them, are entirely proper. Reasons should be recorded and given for a decision. The shadow minister does no more than state what is common, accepted practice and part of the process of natural justice and proper administrative practice.

The review amendments, which are the remainder, are somewhat more complicated. I would have preferred for the Labor Party to have taken a simpler approach, said that there must a review process and determined it on a fairly open and flexible nature. I find the clause as written excessively determinative, if I may say so. I would have preferred, perhaps, that the act would simply require a review process to be undertaken and the actual process to be spelt out by regulation or something. So I have a drafting problem.

If I thought these amendments might get passed, which they will not because the government have the numbers, I would be urging the Labor Party to amend their review proposals. But I support the two principles: I support the actual wording of the reasons in those amendments—I think that is entirely right—and I definitely support the process of review. That is also a well-established principle of natural justice and proper administrative procedure. But I have doubts about the way in which they are framed. So I would like those amendments put separately.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Senator Murray, to clarify, you want amendments (19) and (20) to be separated so that the question would now be on only those two amendments, with amendments (21), (23), (26), (28) and (29) to be decided separately. I will divide that question.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

If I can respond firstly to Senator Murray, I think the Australian Democrats were very keen on a no disadvantage test.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

That’s right.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

How did that no disadvantage test take place? If it were deemed that there was no disadvantage, no reasons were given. Nobody suggested at the time that that was vital or an important part of natural justice et cetera. Yet here this evening, all of a sudden, with a different but very similar test, if it is deemed to be fair we now want all the reasons articulated as to why it is fair, albeit the parties have voluntarily entered into the agreement in the first place. So, with great respect to Senator Murray, he seems to be taking a different view to that which was previously taken.

The parties are genuinely and generally deemed to be able to come to an agreement between themselves which they deem to be fair and reasonable in all their particular and peculiar circumstances. To protect the employees, we have said certain things will not be permitted to be traded away. In fact, on personal leave we said that that was going to be a minimum of 10 days, whereas in some awards it used to be eight days. So that was going to be imported into certain contracts, which raised a higher standard than existed in some awards negotiated by the trade union movement. But, if the parties believe that it is a fair and reasonable agreement, then all that we are doing is requiring the Workplace Authority to check the agreement to ensure that it is in fact a fair and reasonable document.

This is in fact special protection for workers. When workers voluntarily sign up to a hire purchase agreement or a house purchase they think it is a fair and reasonable agreement and it is binding on them. In relation to their employment contract, we are saying that this is a special contract and we are going to provide them with a special and, if you like, extra consumer protection where an independent body looks over the agreement to ensure that it is fair. If it is fair then they are notified that it was deemed to be fair.

In relation to Senator Wong’s quite convoluted submission, if the agreement is deemed to be unfair then the Workplace Authority need to go back to the parties and indicate to them how that perceived unfairness might be remedied. One would have thought that that might expose that which is in the Workplace Authority’s mind as to what was unfair in the first place. Also, and more importantly, the Workplace Authority have to make a finding that it is a fair agreement. If there is some doubt, they have to be satisfied—I think that is the term—that it is a fair agreement. That is why, in clause 346M(6), the Workplace Authority Director is given the power to:

… inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting the employer and the employee, or some or all of the employees, whose employment is subject to the workplace agreement.

So if there are residual doubts they can then be followed up by the Workplace Authority in an appropriate way. This is a robust system. It is an extra layer of protection, an extra part of a safety net for the workers of this country. To have this bureaucratic requirement is something that we as a government simply do not accept. We believe that there is very real and robust protection here for Australian workers. What Senator Murray has argued—and I find it strange—would be a different system to that which was in place under the no disadvantage test.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I cannot leave that unanswered. Firstly, in its final shape the Workplace Relations Act 1996, as passed at the end of 1996 and as applied from 1997, was not an act in which the government got everything they wanted—they know they did not—and it was not an act in which the Democrats got everything they wanted. But if you are going to shift from there to surmising that because we did not get everything we wanted we were going to have a dummy spit, we did not. The whole history of the Democrats in this place has been consistently to support, in all sorts of legislation, both reasons being given for decisions and review processes. The minister has been here long enough to know that that has been the case with us many times. But I think that is an irrelevancy.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Did you ask for reasons for the no disadvantage test?

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Let’s stay with the legislation before us, Senator Abetz, through the chair. It is an irrelevancy because we are considering what the legislation actually suggests. Bear in mind that the amendments I am focusing on with respect to reasons are opposition amendments (19) and (20). They simply say ‘must state the reasons’. They do not say that the reasons have to be extensive, lengthy, involved, convoluted or bureaucratic; they simply say they must be stated. If an agreement passed the fairness test, the reason that the agreement was allowed could be that it met all the requirements of the legislation. If the agreement did not pass the fairness test then they need to spell it out. I think the shadow minister has quite rightly pointed out that 346P(3) says:

If the Workplace Authority Director decides under section 346M that a workplace agreement does not pass the fairness test, the notice must also:

(a) in the case of a workplace agreement that is in operation on the date of issue specified in the notice—contain advice as to how the agreement could be varied to pass the fairness test

In other words, their reasons for rejecting it will result in the creation of advice as to how to remedy it. All the opposition’s amendments are doing is saying explicitly that you must spell out the reasons for rejecting it—here are the reasons—and this is how you can correct it. That is not adding bureaucracy, complexity or undue process; it is merely making explicit what should be a natural consequence if you are rejecting an agreement because it does not pass the fairness test. The minister could argue, through the chair, that the amendments are superfluous and unnecessary, or whatever words he may use, but it is not an answer to condemn them for characteristics and a lack of virtue which they do not have.

That is the reasons area. What I like about the opposition’s amendments is that they do not go to lengths that say the reasons must be full, comprehensive and cover this, that and the other thing; they simply say that a reason must be provided. It might be a clause or a sentence or a paragraph—it depends on the circumstance. When we get to the review process I am critical of the way in which the amendments are devised. I want a review process but I think the way in which they have been devised may be difficult, depending on the circumstances. There I have more sympathy with the minister’s concerns that they may produce consequences which are not that attractive. But I support the principle, and that is important. I always support the principle of giving reasons and reviewing a decision in every case where it is appropriate. Sometimes it may not be. So I think the minister is wrong to indicate inconsistency and he is unfair to the intention of the amendments in the way in which he characterises them.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I want to ask you again about your explanation with respect to how the fairness test works. If I am a 16 -year-old—

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

We all wish.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I wish I was again, yes—seeking employment in—

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

Then you shouldn’t be in this place!

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Maybe if there were a few more 16-year-olds in this place we would get a bit more common sense than we occasionally do across the chamber, but that is a separate issue.

Sandy Macdonald (NSW, National Party) Share this | Link to this | Hansard source

Order! Senator Campbell.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

If you were a 16-year-old is what I meant.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Mr Temporary Chairman, I think you ought to talk to the interjector rather than to me.

The Temporary Chairman:

Order! Yes, I was calling you, Senator Campbell.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I am a 16-year-old seeking employment in the retail industry. I go along for a job, I ‘negotiate’ an AWA with my employer, David Jones, and we spend six hours or a week negotiating this agreement with all of the conditions that I have understood fully, argued out with the employer and put my name to. That is then sent for registration to the office of the Workplace Authority Director. He signs off on that. Minister, he signs off on that. I will wait until you have finished chattering.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

No, keep talking.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Why should I? You are not listening. He signs off on that as being unfair. He presumably notifies the employer, David Jones, and he notifies me, the 16-year-old, that the agreement is unfair and he suggests, ‘This is what you should remedy and how you should remedy the unfairness’. What do I do as a 16-year-old to remedy that unfairness? This is my first job opportunity in the workforce. Explain to me what steps I would take, as a 16-year-old, to deal with that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

First of all, allow me to deal with Senator Murray’s contribution. I will not stay long on that; I think we will have to agree to disagree on that. I did interject and say, ‘Did you seek reasons for the no disadvantage test in the negotiations’, and I was told, ‘Let’s deal with the bill that’s in front of us’.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I did not hear the interjection.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I just thought that that might be a bit of a tell-tale sign. My understanding is that no request was made that it would be appropriate to have reasons in the event that the no disadvantage test was applied and determined that there was no disadvantage in the circumstances and, therefore, the agreement ought to be allowed. But that was never put. Anyway, let us move on.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Where did you get that understanding from?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

If, as Senator Murray would be satisfied with a statement—and I think that is what he said: just one word and then I think he changed it to a sentence—

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

No, I said a clause, a sentence or a paragraph.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

yes—like, ‘It is fair.’ That would not really assist anybody and would not be of great assistance, but it would be added bureaucracy, added cost for no benefit because under 346P:

(1)

If the Workplace Authority Director decides … that a workplace agreement passes the fairness test, the Workplace Authority Director must notify the following of the decision:

(a)

the employer in relation to the workplace agreement;

(b)

if the workplace agreement is an AWA—the employee whose employment is subject to the AWA;

(c)

if the agreement is a union collective agreement or a union greenfields agreement—the organisation or organisations bound by the agreement.

So they will in fact be notified that it was determined to be fair. For them to have to set out all of the reasons when the parties had entered into this agreement voluntarily seems to me to be unfortunate and unnecessary bureaucracy.

Coming to Senator Campbell, can I remind him of the extra protection that Australian workers were provided for the first time ever as a result of the Howard government legislation? Because of clause 37—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Because it didn’t work, which is why you’ve got this bill in the first place!

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Because of clause 373 in the existing legislation—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Everyone knew it was a joke. Now you are back here to fix it up before the election.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The good senator is interjecting without having any idea what I am about to say and comment on. Senator Campbell was banging on about if, in his wishful thinking, he were a 16-year-old again and what would happen in those circumstances as a 16-year-old. What I am pointing out is that, for the first time ever, in our recent legislation, which has now been in force for about 15 months or so, those people who are under the age of 18 are required to have their agreements co-signed by a legal guardian or a parent. For the first time ever. And of course that was one of the extra protections that we as a government decided to put in to protect the young of this country. The trade union movement did not argue for that, might I add.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

The National Party did.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The National and Liberal parties did, Senator Joyce, because we believed it was fair and reasonable. As a result, the scenario put forward by the honourable senator is once again in ignorance of the fact that it is protected by law—and I will use that phrase—as a result of the Howard government’s legislation. This unfortunately highlights yet another example of a former trade union official in this place so hell-bent on misrepresenting our legislation and proposals that he does not bother to acquaint himself with the facts, the circumstances and the legislation before going out into the community. Senator Campbell has undoubtedly given radio interviews and speeches at Labor Party branch meetings and elsewhere condemning—

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Mr Temporary Chairman, I rise on a point of order. I do not mind the minister berating me or taking issue with the questions I ask but, if he is going to make personal attacks, I am quite happy to stand here and return the personal attacks if that is what the minister wants. Minister, if that is the way you want to conduct yourself in debate, I am quite happy to accommodate you. I am well aware of the fact that they have to get a guardian’s approval to sign it, but I am asking you: what do they do and how do they remedy it? Not every 16-year-old’s guardian is a legal person, has legal qualifications, understands the Workplace Relations Act and understands the employee-employer relationship. So the question is still valid irrespective of whether they are aged 16 years or 18 years and one day. The point is this: what do they do if they are told by the workplace director that their agreement is unfair? What steps do they take to seek to remedy that unfairness?

Sandy Macdonald (NSW, National Party) Share this | Link to this | Hansard source

Thank you, Senator Campbell. I do not think you have a point of order but you had a further chance to speak on it. I remind the minister that this is a chance for him to answer the debating points.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Absolutely. Unfortunately, Senator Campbell spent quite some time seeking to highlight by implication and innuendo the disadvantage a 16-year-old would face. What Senator Campbell has not caught up with was the fact that, some 15 months ago, the Howard government changed the law to protect those 16-year-olds—protection which, over a century of trade unionism in this country, had not been afforded those 16-year-olds. Do I get excited when those opposite misrepresent this government? Yes, I do, for very good reason. Could I return the compliment to Senator Campbell and suggest that, hypothetically, I am not a 16-year-old but in fact an 18-year-old and I happen to work for an employment agency. They often need a common law contract of employment, and they tell me that it is fair to pay me an extra 45c per hour in exchange for all my award entitlements. Who checks this? Who independently tells me that it is fair? I trust it will not be the Leader of the Opposition.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

I was a bit annoyed, I might say—which is not common with me—at the misrepresentation of the minister about the negotiations between the Democrats and the coalition government with respect to the Workplace Relations Act. I will summarise my understanding of what the minister said. He said that he has been advised that no representation was made at that time, for reasons to be given, with respect to the no-disadvantage test. Those recent questions and answers were not foretold, so the only source of that advice—and I am convinced that they did not give it—would be the advisers at the minister’s shoulder. None of those advisers—and I can see their faces—were involved in the negotiations. None of them sat—and neither did Senator Abetz—in rooms which were occupied by me and the then minister, Peter Reith, who was extremely efficient, professional and polite. He was never petty and was always to the point and well argued. I admired his negotiating ability in stance and capacity. At times we were joined by advisers. At times those advisers were expanded to include government officials. Those meetings were not recorded on tape or on Hansard.

There were some written notes at times, and they varied, so it would be impossible for the former minister, me, advisers or anybody else to remember everything that was said or was passed between us. But what I do remember is this: we knew, when the global no-disadvantage test had to be agreed upon, that global no-disadvantage test was an appraisal of all the allowable award matters and that by and large Australian workplace agreements—the pre Work Choices agreements—had to be at least as good as or better than those allowable matters taken as a whole. To arrive at that decision of either accepting or rejecting them, the Employment Advocate would have to come to a set of reasons as to why they either complied or did not comply. It was a perfectly commonsense outcome. The fact is that we did not write it into the legislation. I cannot recall the detail of it all, but what I do not like is the minister smugly asserting—he was not there; he was a backbencher and was not even involved as a chair of the Senate committee or in any other way—that he knows whether the matter was discussed. That is what he is saying. I can assure you that reasons were discussed, but I cannot recall the reason why they were not finally put in. I would have to go back to my notes, and I would have to ask former Minister Peter Reith. I will say again for the record that, in the whole conduct of Peter Reith’s negotiations with us, I found him to be extremely professional and never smug or petty.

The second thing I want to come back to with respect to these two provisions is that they say ‘must state the reasons’. I said that that could be a clause, a sentence or a paragraph. The minister immediately came back and said that saying that something is or is not fair might be a reason but it creates cost, bureaucracy and so on. If in examining the issue somebody arrives at the opinion that the agreement does or does not comply with the legislation, that is a reason. The virtue of the opposition’s suggestion is that it allows those reasons to be relevant to the matter concerned and to be as short or as long as necessary.

The attitude of the government to every amendment that comes to this place is to reject it because it was not written by them. That is the attitude, unless Senator Joyce has the gumption and the courage to stand out against them, in which case they have to take a different view. The real reason the government is rejecting these amendments is that they were written by the Labor Party. The Labor Party could write an amendment giving every member of the government a million-dollar bonus and you would still reject it because it was written by the Labor Party. You have a visceral, naked, aggressive, ugly repulsion of anything that the opposition puts forward as an amendment in this place. Maybe you have accepted one opposition amendment, but you tell me of any others you have accepted since 1 July 2005. If it comes from them, it is bad—I think that is the attitude that lies behind your rejection of these sorts of amendments. The problem is that we then get to a situation where we never examine anything on its merits. You can reject the opposition’s amendments for good, sound policy reasons—and I think there might be good, sound policy reasons to reject the second set of these amendments—but the principles of reasons and review they outline are perfectly reasonable propositions. You might resist and reject the way in which they are worded, but you should not reject the principles they espouse.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I acknowledge Senator Murray and the dignity he gives to this chamber.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

With that outburst?

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

He always tries to do the right thing; you have to give it to him. He is always a fair arbiter of the way the debate is going. It is right that you should get on the record, Minister, because people are listening to the broadcast of this, whether you know of anyone who offers 45c an hour for the delivery of overtime penalty rates and allowances. I think it is fundamentally important that the Australian people understand the integrity and the philosophical conceit of the argument that is purported to come from the other side—that dinner, breakfast and lunch are put on the table by an individual contract that allows as payment for overtime penalties and allowances a paltry amount of 45c an hour. I have a business and, if I were to offer that to my employees, it would be a complete and utter insult. I would not do it. I let my employees determine their overtime penalties and allowances because I want to keep them. I ask you, Minister, so that all the people driving home from work tonight might hear of it: do you know of a business in this nation that offers 45c an hour for overtime penalties and allowances?

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I want to raise the issue that I initially raised with the minister and which he has not answered. I will make it easier for him—I will make the person 18 years and one day old. That person sat down for three or four weeks and negotiated an agreement with David Jones, the retailer, for employment in the retail industry. He signed up to an AWA, which the Workplace Authority Director finds is not fair. How does that person go about seeking to redress any deficiency that exists within that agreement?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It is good that we have moved on to people who are of legal age because I think we dealt with the under-18-year-olds very effectively. In relation to 18-year-olds and over, in those circumstances the Workplace Authority Director would indicate to the parties how a perceived unfairness in the agreement might be overcome. Also, as I have previously read out, clause 346M(6) states:

In deciding whether a workplace agreement passes, or does not pass, the fairness test, the Workplace Authority Director may inform himself or herself in any way he or she considers appropriate including (but not limited to) contacting the employer and the employee, or some or all of the employees, whose employment is subject to the workplace agreement.

So the authority would indicate to the employee what the deficiencies are and how they might be overcome. That is the extra safety net that we are providing to Australian workers. It is a safety net that, I might add, is not in common-law agreements. I note that the Australian Labor Party does not seem to require that for common-law agreements. That is an interesting observation given Senator Joyce’s intervention, which I will not engage on any further. But I do acknowledge what he is getting at.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Are you saying, Minister, that in the circumstances I have outlined the Workplace Authority Director is compelled to advise both the employee and the employer of the deficiency? Are you saying that he is required to advise both of the deficiency?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Yes.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Minister, I am just trying to clarify. I am trying not to engage in rhetorical debate; I am trying to clarify what this legislation means in practice. Does that mean that, as an 18-year-old, I am then compelled to accept what the workplace director says? What the workplace director says is the way in which to correct the agreement—is that the option that is available to me? Whatever the workplace director says is required to make the agreement fair, from being unfair, I am required to accept?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

What has occurred is that two parties have entered into an agreement voluntarily. It is submitted to the Workplace Authority for its extra consideration—all, might I add, geared for the protection of the employee. So, even if the Workplace Authority Director thinks this is completely unfair to the employer, that will not be something that will be able to exercise his or her mind. The only thing that can exercise his or her mind is whether it is unfair to the employee. In those circumstances, albeit the employee has signed up voluntarily, the Workplace Authority Director would then be in touch with both sides to say, ‘This legally binding agreement that you wanted can be made legally binding by overcoming certain deficiencies’—and then certain suggestions are made—‘and if they are acceptable to the employer then we have an agreement.’

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

What if they are not acceptable to the employee, Minister?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

It would be a bizarre situation where the employee thought the agreement was fair and had it submitted, and the Workplace Authority Director said, in effect, ‘Think you’ve short-changed yourself a bit here, mate; you should really be getting a bit more in a particular area,’ and so the employee all of a sudden gets a windfall, courtesy of the Workplace Authority Director, and then turns around and says, ‘Hey, I don’t want an extra 45c’—no, I won’t be provocative; he turns around and says, ‘I don’t want the extra money or the extra conditions that are now being suggested.’ It just is not in the real world.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I would again repeat the question, Minister, because it may not be acceptable to the employee—I may not want the Kentucky fried chickens that are due to expire on Saturday or Sunday; I may not want the piece of fish or the bread or whatever else they are offering me as non-monetary compensation. They may not be aspects of the agreement that I am interested in, whatever they are. What I am trying to get at is: if the workplace director says, ‘In order to remedy this agreement, you will have to do X, Y and Z,’ and then the employee says, ‘I don’t want to do X, Y and Z to remedy the agreement; I prefer to do A, B and C,’ what avenues are available to me as that employee to pursue that element of the remedy? Or do I simply have to meet what the workplace director says are the deficiencies? Or is it up to the employer to make the remedy to the agreement without reference to the employee? Bear in mind that I am an 18-year-old who is entering the workforce for the first time and I have just spent four weeks negotiating this agreement with David Jones’s head of human resources.

Sandy Macdonald (NSW, National Party) Share this | Link to this | Hansard source

Minister?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I was not necessarily going to respond to that, Mr Temporary Chairman. The simple fact is that the agreement is one the employee was happy with in the first place. It goes to the Workplace Authority Director, and the Workplace Authority Director will not be saying, ‘You have to work an extra hour,’ or, ‘You can no longer pick up your kids from school,’ or whatever else. It is in fact enhancing the conditions of the employee. That is what would be happening if the determination were made that it was unfair. As I stressed before, the test of unfairness does not relate to the employer; it only relates to the employee. Therefore, if it is deemed to be unfair, the employee will only be able to walk out with extra and enhanced conditions that he or she previously did not enjoy.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

What you are saying, Minister, is essentially that if an agreement is found to be unfair the onus will be on the employer to remedy it. We are talking about an 18-year-old. Everybody in this country knows that when young people front up to work for the first time they are given a document and told: ‘Sign on the bottom line and you’ve got a job. If you don’t sign, you haven’t got a job.’ There is no negotiation. Senator Webber in her contribution on the second reading debate went through, chapter and verse, a workplace agreement which was being offered in the mining industry in Western Australia to experienced workers—not to people 18 years of age who have just come out of school to go into the workforce—and they were told: ‘Sign it.’ You cannot even take a copy of it away. You have to sign it on the job: ‘Here it is. During your lunchbreak read it over. Give the copy back and sign it or you haven’t got a job.’ And those people do not have a job.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

That’s right.

George Campbell (NSW, Australian Labor Party) Share this | Link to this | Hansard source

In fact, Senator Webber’s contribution has forced the Office of Workplace Services to write to her seeking information so they can go and inquire into the circumstances of that agreement. Minister, don’t you sit there and tell us what ACCI told us at the inquiry: that there is not one instance of these things occurring, that it is all a figment of our imagination, that it is all being generated because the ACTU is running a scare campaign. There are a multitude of these circumstances out there that we all know about where people are being forced into adopting or accepting agreements which they do not want to have a bar of, but they have no choice because it is the only way they can get a job.

I have asked you a simple question which you have not, in the past 25 minutes, even come close to attempting to answer. That is: how does an employee in those circumstances—an 18-year-old coming into the workforce for the first time—actually seek to remedy a deficient agreement in such a way as to get the conditions they are seeking and not the conditions that are being imposed upon them by an employer? I have not heard the answer. If you are not prepared to answer it, just tell me and I can go and do something else.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

If Senator George Campbell wants to absent himself that may be beneficial all around. I can indicate to him that I have in fact answered that question. The problem is that those who are still bogged down in the trade union movement’s views of the 1950s just cannot understand and accept that individuals will make employment arrangements between themselves and their employer. It is always open to the parties, should they want to, to vary an agreement.

In relation to Senator Webber’s alleged expose, we on this side have, unfortunately, found that when the ACTU has put so-called scenarios on television advertisements they have been found to be false and been withdrawn. In relation to Senator Webber’s contribution, I am astounded that if she is aware of this information she should raise it in the parliament without having referred it to the appropriate authorities to investigate. I congratulate the Office of Workplace Services for proactively going to Senator Webber and asking her for the details. I am gobsmacked as to why the honourable senator, having known about an alleged breach of the law, has not gone and reported it to the appropriate authorities. I say to everybody who might be unfortunate enough to be listening to this broadcast that, if they are concerned, they should report their concerns to the Office of Workplace Services because we now have an independent body that seeks to champion the cause of workers to ensure that they do get industrial justice.

Ruth Webber (WA, Australian Labor Party) Share this | Link to this | Hansard source

I cannot help but respond to some of the imputations made by the minister in his latest contribution. It is not my usual practice to take part in the committee stages of any legislation except legislation that I am intimately involved with. However, if you are going to have a go then you will get one back. I was not aware, Minister, that you knew exactly when I was made aware of that individual contract because I did not reveal that last night for a very good reason. Those workers gave me that contract on the weekend on the basis of me respecting their confidentiality. I have advised the Opposition Whip that I did get that response from the government department. I have also written back to the government department—obviously they have not told you—saying that it was given to me on the basis of confidentiality. I will go back and meet with those people in person before I reveal those details. I would hope that you would respect that, when I say I will respect their request for confidentiality, I will uphold that. They were aware I would use it as an example and they were happy with that. But I will not reveal those details until I get their permission because some of their workmates are still working on that mine site and they are concerned about victimisation. If they give me the permission to reveal it, I expect you to come in here and retract what you have just said.

Sandy Macdonald (NSW, National Party) Share this | Link to this | Hansard source

The question is that amendments (19) and (20) on sheet 5295 be agreed to.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question now is that amendments (21), (23), (26), (28) and (29) on sheet 5295 be agreed to.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (19), (20) and (21) on sheet 5285:

(19)  Schedule 1, item 1, page 24 (line 17) after “instruments that”, insert “if not an award, pass the fairness test and that,”.

(20)  Schedule 1, item 1, page 24 (lines 24 and 25), omit “, to the extent that the designated award contains protected award conditions”.

(21)  Schedule 1, item 1, page 25 (line 14), at the end of subsection 346Y(5), add:

            ; (j)    a preserved State agreement;

             (k)    a notional agreement preserving a State award.

These amendments relate to what happens when an AWA fails to pass the fairness test. Currently, it goes back to the previous agreement, even if it was a pre 7 May agreement that may not or would not have passed the fairness test. These amendments provide that if an agreement fails the test you go back to the previous agreement, if it passes the test, or, failing that, onto the appropriate award. These amendments close a loophole and the potential for employees to be worse off if their agreement fails the test. I did raise this during my second reading speech. We are concerned about what happens to an employee if an AWA fails the fairness test and that, if the agreement fails and it goes back to a previous agreement, it may in fact leave them worse off. We believe that these amendments deal with that and make the process fairer.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Is the minister going to indicate the government’s intention in relation to these amendments?

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

I will do.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

There has been a range of amendments moved and I would think that it would be appropriate for the government to indicate what its view was in relation to the issues raised by Senator Siewert.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (22) on sheet 5285:

(22)  Schedule 1, item 1, page 26 (lines 18 to 25), omit paragraph 346ZA(2)(b), substitute:

             (b)    to continue to be so bound until the time when the employee ceases to be employed by the employer.

This relates to the redundancy provisions in section 394. The bill provides that, where an agreement ceases to operate because it fails the fairness test and the agreement contained a redundancy provision, that redundancy provision continues to apply for 12 months or the employee is no longer employed by their employer, whichever is the earlier, or a new workplace agreement comes into operation. This amendment provides that the redundancy provision continues until the time the employee ceases to be employed, so it takes away the 12-month limit.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I have indicated to Senator Siewert that, whilst we have some sympathy for the issues she is trying to address here, on balance we will not be supporting the amendment. I would refer Senator Siewert to the commitments contained in Labor’s Forward with Fairness policy, which deals with redundancy provisions and addresses most of the concerns she is seeking to deal with in this amendment.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats support this amendment.

Question put:

That the amendment (Senator Siewert’s) be agreed to.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (23), (24) and (25) from sheet 5285 together:

(23)  Schedule 1, item 1, page 29 (line 30), after paragraph 346ZF(1)(b), insert:

         or (c)    treat an employee any less favourably;

(24)  Schedule 1, item 1, page 29 (lines 31 to 32), omit “the sole or dominant reason for the employer dismissing, or threatening to dismiss,”, substitute “one of the reasons for the employer dismissing, or threatening to dismiss or treating less favourably,”.

(25)  Schedule 1, item 1, page 30 (lines 7 to 10), omit subsection 346ZF(3).

These amendments also relate to failure to pass the fairness test. They are designed to provide greater protection for people on AWAs. These amendments particularly relate to protection for people who are dismissed if their workplace agreement fails or may fail the fairness test. The amendments extend the protection to being treated unfairly as well as dismissal and provide that an agreement failing the test may be only one of the reasons for dismissal or unfavourable treatment rather than the sole or determinant reason. The problem with the sole determinant reason provision is that employers can get around it. This is another one of the issues that Professor Andrew Stewart brought up in his submission to the inquiry on the safety net bill where he pointed out a number of what he considered loopholes in the provisions within the bill. The Greens are seeking to close these loopholes and provide better protection for workers who may be dismissed if their workplace agreement fails or may fail the test.

Question negatived.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

by leave—I move opposition amendments (31) and (32) together.

(31)  Schedule 1, page 36 (after line 3), after item 22, insert:

22A At the end of section 613

Add:

        (2)    Notwithstanding the other factors set out in this section or a provision in a workplace agreement or an award, an employee who wishes to attend religious activities on Good Friday must be taken to have reasonable grounds for refusing a request to work on Good Friday.

(32)  Schedule 1, page 36 (after line 3), after item 22, insert:

22B At the end of section 613

Add:

        (3)    Notwithstanding the other factors set out in this section or a provision in a workplace agreement or an award, an employee who wishes to attend religious activities on Christmas Day must be taken to have reasonable grounds for refusing a request to work on Christmas Day.

These amendments deal with the issue of protection for public holidays. Labor believes that Australian employees are entitled to real protection for public holidays. The government’s test is supposed to provide protection from the loss of certain protected award conditions such as public holiday pay, but, as I said, Labor believes in real protection for working Australians, including for the time that they are entitled to not be at work or to entitlements if they choose to be at work.

The government’s Work Choices act states, on the one hand, that employees are entitled to a day off on public holidays but, in the very next section, it states that an employer may request an employee work on a public holiday. The legislation does indicate in section 612(3) that an employee can refuse a request where they have reasonable grounds to do so. It would be interesting to know how many Australian employees are actually aware that this provision exists in the legislation, let alone how to wade through the factors and debate with their employer as to whether their excuse is reasonable. We are proposing amendments to ensure that, when Australian workers are asked by their employer to work on public holidays, it is clear in which circumstances an employee has reasonable grounds for refusing.

On page 4 of sheet No. 5295 revised, amendment 31 states as follows:

Notwithstanding the other factors set out in this section or a provision in a workplace agreement or an award, an employee who wishes to attend religious activities on Good Friday must be taken to have reasonable grounds for refusing a request to work on Good Friday.

A similar provision is sought to be inserted by amendment 32 in relation to Christmas Day:

Notwithstanding the other factors set out in this section or a provision in a workplace agreement or an award, an employee who wishes to attend religious activities on Christmas Day must be taken to have reasonable grounds for refusing a request to work on Christmas Day.

These are important matters. One of the things that Labor has consistently said in relation to the Work Choices debate over the last 18 months or so is that the provisions of industrial relations legislation such as was rammed through the Senate do not only go to the technical aspects of people’s conditions of employment and they do not only go to the detail of what can or cannot be included in agreements. Those matters are important, but the legislation in fact goes to a great deal more than that. I note that tonight the minister made a joke about Labor requiring greater protections in an employment contract than in a hire-purchase arrangement—well, we do, and we make no apology for that.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

The minister suggests I am misrepresenting him, and I invite anybody who is listening perhaps to go back to the Hansard record. The point is that this goes to the sort of society we are. Work Choices was a piece of legislation that was as much about the sort of Australia we want, the sorts of values we want to inculcate and the attitude to work and working life that we believe in. We have always taken a view in this country that there are some fundamental rights, some fundamental values and some fundamental principles such as a fair day’s pay for a fair day’s work and the eight-hour day, because behind that we think employees are entitled to spend some time with their family. We have always had the view that the provision of reasonably remunerated work and reasonable conditions goes to the heart and the dignity of working people in their employment lives and in the nature of our society. What we are talking about here is that there are some things we should value—we should say that people who wish to attend religious activities on Good Friday or Christmas Day should be allowed to do so. That should be classed as being a reasonable ground for refusal.

I urge the Senate to consider supporting these two amendments. I would have thought they were unremarkable and consistent with the way in which most of us would approach these sorts of public holidays. They are days to which a great many people in our community ascribe a significant amount of spiritual and religious value. It would seem to us on this side of the chamber that there is benefit in placing in the legislation some protection for that and some recognition of the traditions that many people observe in relation to these particular days.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats support those amendments.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

The Greens will likewise be supporting these amendments.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

The government opposes the proposed amendments as they would unnecessarily limit the ability of employers and employees to negotiate arrangements that best suit their needs. The Workplace Relations Act provides a statutory entitlement to public holidays, in particular the specified iconic public holidays like Christmas Day and Australia Day; days substituted for those public holidays, for example if Christmas Day falls on a Sunday; and days declared as public holidays under state or territory law. Just as importantly, the act provides a right to paid leave on those public holidays. It also gives employees the right to reasonably refuse a request to work on a public holiday.

Whether a refusal is reasonable depends on all the circumstances; those that relate to both the employee and the employer. If somebody was employed at a service station, for example, and they indicated to their employer with plenty of notice—and I am not sure that the opposition amendment deals with the amount of notice that is required to be given by the employee to the employer—that they did not want to work because they had a religious commitment on that day, given that there may be a large pool of people to draw upon, that may be a perfectly reasonable request. However, if a doctor has been rostered on for an emergency service requirement at a public hospital, for example, and is an employed doctor, and he indicates he has a religious commitment one day before the particular religious holiday, I think it would be fair to say that the chances are in all the circumstances that would be deemed to be unreasonable. That is why there is the need for flexibility, and I think we have got the balance right in relation to that.

Of course, awards and agreements can provide additional entitlements such as penalty rates for working on public holidays or extra days off in lieu. Observance of public holidays and entitlements to payment on those days are protected award conditions for the purposes of agreement making. This means that they cannot be excluded or modified by a new workplace agreement without fair compensation in lieu. The statutory guarantee to public holidays under the Workplace Relations Act is similar to, if not stronger than, rights to public holidays under state and territory law. Allow me to give you two examples.

In New South Wales an entitlement to a paid day off for a public holiday is not determined by the relevant legislation, the Banks and Bank Holidays Act 1912. That legislation only proclaims public holidays. An entitlement to a paid day off must come from an award agreement or contract of employment. Another example—or another two, in fact—is that in Queensland and Western Australia employees are entitled to be paid for public holidays, but there is no statutory right for employees to reasonably refuse to work on those days. So the proposals being put forward by the opposition are unworkable. Once again, they do not allow for flexibility—in fact, they would tie up the legislation even more than in the past.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (31) and (32) be agreed to.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I move opposition amendment (33) on sheet 5295 revised:

(33)  Schedule 1, page 36 (after line 3), after item 22, insert:

22C At the end of section 613

Add:

        (4)    Notwithstanding the other factors set out in this section or a provision in a workplace agreement or an award, an employee who wishes to attend commemorative events on Anzac Day, or to support the attendance of a member of the employee’s family at commemorative events on Anzac Day, must be taken to have reasonable grounds for refusing a request to work on Anzac Day.

Perhaps while government senators are here they should be aware that they have just voted against a Labor amendment which would ensure that people who wish to observe a religious ceremony on Good Friday or Christmas Day do not have grounds under the act to refuse a request to work overtime on that day—just to be clear about what the government’s position is on this. Now you have the opportunity with this next amendment to ensure that employees who wish to attend commemorative events on Anzac Day or to support the attendance of a member of the employee’s family at commemorative events on Anzac Day—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Bernardi interjecting—

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Order!

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

Are you going to interject from the bleachers, Senator Bernardi?

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Bernardi interjecting—

The Temporary Chairman:

Order! Senator Bernardi will not interject while he is on his feet!

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

I will take the interjection: ‘They should be on an AWA.’ What sort of answer is that from a gentleman who has just voted against making sure people can take Christmas Day or Good Friday off if they want to attend a religious ceremony? You have an opportunity now to ensure that employees who wish to attend a commemorative event on Anzac Day or to support the attendance of a member of the employee’s family at commemorative events on Anzac Day are taken to have reasonable grounds for refusing a request to work on those days. This is about making sure that people can say, ‘Listen, I want to march,’ or, ‘I want to be there while one of my relatives marches.’ I commend the amendment to the Senate.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

The Democrats support the amendment.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens absolutely support the amendment.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

For the reasons outlined in relation to the previous amendment, the government is opposing this.

Question put:

That the amendment (Senator Wong’s) be agreed to.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

by leave—I move Australian Democrats amendments (1) and (3) on sheet 5266:

(1)    Schedule 1, page 4 (after line 4), before item 1, insert:

1A  Paragraph 22(1)(a)

After “conduct”, insert “annual”.

(3)    Schedule 1, page 4 (after line 4), before item 1, insert:

1C  Paragraph 24(1)(a)

Before “the”, insert “subject to paragraph 22(1)(a),”.

Amendment (3) is simply consequential. Amendment (1) requires annual wage reviews by the Australian Fair Pay Commission. It is probably implicit in the functioning of the commission. I seek to make it explicit. It is one of those things that either you agree with or you do not. It is plain on the face of it.

Question negatived.

I move Australian Democrats amendment (2) on sheet 5266:

(2)    Schedule 1, page 4 (after line 4), before item 1, insert:

1B  Section 23

Repeal the section, substitute:

23  AFPC’s wage-setting parameters

        (1)    The objective of the AFPC in performing its wage-setting function is to ensure that a safety net of fair minimum wages and conditions of employment is established and maintained while promoting economic prosperity of the people of Australia, having regard to the following:

             (a)    the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community;

             (b)    the capacity of the unemployed and low paid to obtain and remain in employment;

             (c)    economic factors, including levels of productivity and inflation, desirability of attaining a high level of employment, employment and competitiveness across the economy;

             (d)    relevant taxation and government transfer payments;

             (e)    the needs of the low paid.

        (2)    In performing its functions under this Part, the AFPC must have regard to the following:

             (a)    the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which work is performed;

             (b)    the need to support training arrangements through appropriate trainee wage provisions;

             (c)    the need, using a case-by-case approach, to protect the competitive position of young people in the labour market, to promote youth employment, youth skills and community standards and to assist in reducing youth unemployment, through appropriate wage provisions including, where appropriate, junior wage provisions, taking into account:

                   (i)    the extent of labour market disadvantage faced by young workers; and

                  (ii)    the work value of young workers at different ages; and

                 (iii)    the promotion of skills development and training of young workers to reduce their labour market disadvantages; and

                 (iv)    the desirability of minimising discrimination on the basis of age in wage rates only to the extent necessary to further these objectives; and

                  (v)    the structural efficiency principle; and

                 (vi)    that 18 years of age is considered an adult;

             (d)    the need to provide a supported wage system for people with disabilities;

             (e)    the need to apply the principle of equal pay for work of equal value;

              (f)    the need to prevent and eliminate discrimination because of, or for reasons including, race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

        (3)    For the purposes of paragraph (2)(f), trainee wage arrangements are not to be treated as constituting discrimination by reason of age if:

             (a)    they apply (whether directly or otherwise) the wage criteria set out in the award providing for the national training wage or wage criteria of that kind; or

             (b)    they contain different rates of pay for adult and non-adult employees participating in an apprenticeship, cadetship or other similar work-based training arrangement.

This amendment seeks to substitute a longer and more expansive determination of wage-setting parameters for the Australian Fair Pay Commission and it incorporates either the actual wording or the intention of the existing section 23, which you will find on page 29 of the printed version, as at the end of 2006. The intention of this amendment is to sweep up the many issues which we believe the Fair Pay Commissioner should attend to. Effectively, we are seeking to incorporate specific social goals as well as economic goals in the wage-setting parameters; we are seeking to make it explicit that persons aged 18 and above are adults; and we are seeking to ensure that the First World standards which we think Australia should have with respect to minimum wages and conditions are identified. Of course, as in the government’s original parameters, we have said that the AFPC must have regard to these matters. They must, of course, arrive at their own balance and consideration.

Our amendment says that the objective must include promoting economic prosperity and must provide fair minimum standards in the context of living standards generally prevailing in the Australian community. We believe that the state of the employment market is important—the capacity of the unemployed and low paid to obtain and remain in employment. We think that economic factors are important—productivity, inflation and the desirability of attaining a high level of employment and competitiveness. We think that the AFPC should have regard to relevant taxation and government transfer payments—and that is a matter of some controversy—and that they should have regard to the needs of the low paid.

We say that the AFPC must have regard to the award relationships and training needs—the need for the competitive position of young people and youth employment. We want particular attention paid to any labour market disadvantages for young workers. We of course advocate the desirability of minimising discrimination on the basis of age and wage rates. We refer to the structural efficiency principle. We argue for a supported wage system for people with disabilities. We enshrine the need to apply the principle of equal pay for work of equal value. We spell out the need to prevent and eliminate discrimination and itemise those characteristics, and we allow for exemptions or special determinations with respect to discriminating wage arrangements where people are trainees. That is a brief summary of the content. It is an expanded version, but the Democrats feel particularly strongly that the whole basis of a civilised, First World standard in this economy and this society starts with the minimum wage. That is why we have been promoting an expansion of the existing wage-setting parameters.

Question negatived.

by leave—I move Democrats amendments (4) and (5) on the sheet 5266 together:

(4)    Schedule 1, page 4 (after line 4), before item 1, insert:

1D  Paragraph 103(1)(b)

After “economy” (second occurring), insert “and society”.

(5)    Schedule 1, page 4 (after line 4), before item 1, insert:

1E  Paragraph 103(2)(b)

After “economy” (second occurring), insert “and society”.

We are explicitly saying that, with respect to any consideration of the public interest, the economy must be accompanied by a view being taken of society. So both of those amendments say ‘after economy insert “and society”’. We are not of the belief that a man or a nation is purely an economic being. We do believe we are primarily social beings and economics is a means to an end. We think that, in this perspective of minimum conditions and the safety net, a regard to how society is and the aspirations of society should be explicit.

Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Link to this | Hansard source

Very briefly, the commission has to have regard to the objects of the Workplace Relations Act 1996. Part of that includes the welfare of the people of Australia, which is something we pray for each day when we start proceedings in this place. Therefore, we believe the amendments are unnecessary.

Question negatived.

Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Before I start, I will remark to the minister, through you, Chair, that I think that is a very good prayer. By leave—I move Democrats amendments (6), (7), (8), (9), (10) on sheet 5266 together:

(6)    Schedule 1, page 4 (after line 4), before item 1, insert:

1F  At the end of subsection 151(3)

Add:

   ; and (c)    the principle that men and women should receive equal remuneration for work of equal value.

(7)    Schedule 1, page 4 (after line 4), before item 1, insert:

1G  After Subdivision G of Division 2 of Part 7

Insert:

Subdivision GA—Indexation of minimum wage

200A  Indexation of minimum wage

        (1)    This Subdivision provides for the indexation of the minimum wage, in line with the Consumer Price Index, to start on commencement of this section.

        (2)    The indexation factor is to be worked out in accordance with section 1193 of the Social Security Act 1991.

        (3)    The rounding off of indexed amounts is to be worked out in accordance with section 1194 of the Social Security Act 1991.

(8)    Schedule 1, page 4 (after line 4), before item 1, insert:

1H  After subsection 226(4)

Insert:

Unreasonable hours

     (4A)    An employee must not be requested or required by an employer to work unreasonable hours, whether as additional hours or otherwise.

      (4B)    For the purpose of subsection (4A), the factors to be taken into account in determining whether hours are unreasonable include:

             (a)    any risk to the health and safety of the employee, other employees, customers or clients; and

Note:   For purposes of this paragraph, an example is where truck drivers or doctors in hospitals are given unreasonable hours that endanger the health and safety of others.

             (b)    the employee’s personal circumstances (including family responsibilities); and

             (c)    any notice given by the employer of the requirement or request to work the hours in question.

Note:   For example, hours may be unreasonable because the employee is asked to work excessively long hours, or an unreasonably short shift, or shifts broken by an unreasonably short period, or at unreasonably short notice.

(9)    Schedule 1, page 4 (after line 4), before item 1, insert:

1I  Subsection 337(4)

Repeal the subsection, substitute:

        (4)    The information statement mentioned in subsection (2) and paragraph (3)(a) must contain:

             (a)    information about the time at which and the manner in which the approval will be sought under section 340; and

             (b)    if the agreement is an AWA—information about the effect of section 334 (which deals with bargaining agents); and

             (c)    if the agreement is an employee collective agreement—information about the effect of section 335 (which deals with bargaining agents); and

             (d)    must be appropriate, having regard to the person’s particular circumstances and needs, especially if the employee(s) whose employment will be covered by the agreement are women, persons from a non-English speaking background or young persons; and

             (e)    any other information that the Employment Advocate requires by notice published in the Gazette.

(10)  Schedule 1, page 4 (after line 4), before item 1, insert:

1J  Subsection 400(6)

Repeal the subsection, substitute:

        (6)    To avoid doubt, an employer is considered to have applied duress to an employee for the purposes of subsection (5) if the employer requires the employee to make an AWA with the employer as a condition of engagement.

I will speak to the amendments, but I request that the question on each is put separately. Amendment (6) on sheet 5266 adds ‘and the principle that men and women should receive equal remuneration for work of equal value’. As you know, we put that into the AFPC’s wage parameters. We think that is a principle that should be in IR legislation, and therefore we seek to add it. In amendment (7) we argue for the indexation of the minimum wage. If you have an annual wage determination, indexation is not necessary. But if you do not have an annual wage determination, we think indexation of the minimum wage is necessary. So this amendment is moved in anticipation of us losing our annual wage amendment.

For amendment (8) I need to record that the coalition introduced quite an improvement on unreasonable hours from the previous legislation. Work Choices does say that an employer must not make an employee work unreasonable hours above 38 hours per week. That applies to all employees, including managers, and not just those who are paid overtime. Prior to Work Choices there was no general right of this kind, and this right cannot be reduced by agreement. The difficulty with these things is there is always a question of enforcement. And of course you do get very diligent and determined employees who voluntarily work unreasonable hours and sometimes employers are hard put to restrain such individuals. That might seem unusual, but in my experience it is not unusual. You do find willing horses that need restraining.

But I am less concerned about that—and I am pleased with the existing provision in Work Choices—than with a continuing problem with unreasonable hours with respect to categories where there is danger to public health and safety. I got onto this unreasonable hours issue as a result of the truck drivers’ campaigns over the years, to which we have all been subjected, where truck drivers are obliged or made to or feel they have to work unreasonable hours. The consequences can, of course, be road accidents, deaths and injury. The other problem I have is with doctors and medical staff in hospitals working unreasonable hours, particularly interns fresh out of training who have been known to work—it is well reported and well recorded—anywhere up to 100 hours a week. Of course the result is they make mistakes and again people’s lives and health are endangered. So the purpose of that unreasonable hours amendment of ours, and we have put in a specific note, is to actively legislate against that behaviour. So we have two notes which explain the unreasonable hours in there, which includes:

Note:   For purposes of this paragraph, an example is where truck drivers or doctors in hospitals are given unreasonable hours that endanger the health and safety of others.

We think the provisions are desirable.

Item (9) refers to the manner in which approvals will be given with respect to individual workplace agreements, employee collective agreements and so on. The purpose is that the information statement spelt out in the legislation—and we had a discussion about that earlier—must contain a number of matters with respect to bargaining agents, and a person’s particular circumstances must be taken into account. That is to address better provision of information and to improve genuine consent for vulnerable workers.

The last item on sheet 5266, which I will motivate now, is item (10). That refers to the requirement for an Australian workplace agreement as a condition of employment to be considered duress. That section repeals subsection 400(6). It says:

• (6)To avoid doubt, an employer is considered to have applied duress to an employee for the purposes of subsection (5) if the employer requires the employee to make an AWA with the employer as a condition of engagement.

That is an issue of great contention between the different sides. There are those who think they are entitled, and should be entitled, to do that and there are those, like me, who think that is prima facie making a workplace agreement a condition of employment of a particular kind in a particular manner, which means that the employee does not effectively have a choice. I happen to sign up to the small ‘l’ liberal view of choice—that people should have choice—which is why I support individual agreements as well as collective agreements. I also support, therefore, the right of people to reject an agreement, which may not be conceived to be in their interest.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Democrats amendment (6) be agreed to.

Question negatived.

The Temporary Chairman:

The question is that Democrats amendment (7) be agreed to.

Question negatived.

The Temporary Chairman:

The question is that Democrats amendment (8) be agreed to.

Question negatived.

The Temporary Chairman:

The question is that Democrats amendment (9) be agreed to.

Question negatived.

John Hogg (Queensland, Deputy-President) Share this | Link to this | Hansard source

The question is that Democrats amendment (10) on sheet 5266 be agreed to.

Question put.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) to (4) on sheet 5303:

(1)    Schedule 2, page 61 (after line 10), at the end of Division 2, add:

Social Security Act 1991

31A  Paragraph 502(4)(e)

After “applicable statutory conditions”, add “and would not pass the fairness test under Division 5A of the Workplace Relations Act 1996.”

(2)    Schedule 2, page 61 (after line 10), at the end of Division 2, add:

31B  Paragraph 541D(1)(e)

After “applicable statutory conditions”, add “and would not pass the fairness test under Division 5A of the Workplace Relations Act 1996.”

(3)    Schedule 2, page 61 (after line 10), at the end of Division 2, add:

31C  After subsection 629(1B)

Add:

      (1C)    Without limiting the matters to be taken into account for the purposes of paragraph (1)(d), a refusal to accept an offer of employment that is conditional on signing an AWA which would not pass the fairness test under Division 5A of the Workplace Relations Act 1996 constitutes a reasonable excuse to refuse an offer of employment.

(4)    Schedule 2, page 61 (after line 10), at the end of Division 2, add:

31D  Paragraph 731B(1)(e)

After “applicable statutory conditions”, add “and would not pass the fairness test under Division 5A of the Workplace Relations Act 1996.”

I call these the Welfare to Work amendments. They relate to the fairness test and the participation requirements. They will amend the Social Security Act to provide that, where there is a requirement for a person receiving a benefit to accept a job, they will not be required to accept the job if the terms and conditions would fail the fairness test. The consequence of refusing a job could be that the person would be breached and would receive the non-payment period. It is unacceptable for a person to receive an eight-week non-payment period for refusing a job with unfair working conditions. This amendment would apply to parenting, youth allowance, Newstart and special benefit payments. This amendment is designed to bring this bill into line with the Social Security Act. It will amend the Social Security Act so that a person would not be breached if their AWA would not pass the fairness test under division 5 of the Workplace Relations Act 1996. It is a simple amendment to bring the two acts into line and to ensure that people are not unfairly breached.

Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Link to this | Hansard source

We support the principle behind Senator Siewert’s amendment, which is that suitable work for the purposes of social security legislation should reflect the minimum standards within the industrial relations arena. That, I think, is what the senator is proposing. I have raised with Senator Siewert that we have some concerns about the technical detail of the amendment and on that basis we are unable to support the amendment. But I have made clear what Labor’s position is with respect to the principle.

Question put:

That the amendments (Senator Siewert’s) be agreed to.