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

I move Greens amendment (28) on sheet 5285:

(28) Page 83 (after line 20), at the end of the bill, add:

Schedule 6—Redundancy and hours of work

Workplace Relations Act 1996

Part 1—Redundancy

1 After Division 6 of Part 7

Insert:

Division 6B—Redundancy pay

316G The guarantee

                 If an employer has made a definite decision that the employer no longer wishes the job an employee has been doing to be done by anyone, the employer will pay the occupant of that job an equitable payment in accordance with this Division.

316H Definitions

                 In this Division:

a week’s pay means the ordinary time rate of pay for the employee concerned, provided that such rate excludes:

             (a)    overtime; and

             (b)    penalty rates; and

             (c)    disability allowances; and

             (d)    shift allowances; and

             (e)    special rates; and

              (f)    fares and travelling time allowances; and

             (g)    bonuses; and

             (h)    any other ancillary payments of a like nature.

business includes trade, process, business or occupation and includes part of any such business.

redundancy occurs if an employer has made a definite decision that the employer no longer wishes the job an employee has been doing to be done by anyone and that decision leads to the termination of employment of the employee.

transmission includes transfer, conveyance, assignment or succession whether by agreement or by operation of law and transmitted has a corresponding meaning.

316I Transfer to lower paid duties

                 If an employee is transferred to lower paid duties by reason of redundancy, the same period of notice must be given as the employee would have been entitled to if the employment had been terminated and the employer may, at the employer’s option, make payment in lieu thereof of an amount equal to the difference between the former ordinary rate of pay and the new ordinary time rate of pay for the number of weeks of notice still owing.

316J Redundancy pay

        (1)    An employee, whose employment is terminated by reason of redundancy, is entitled to the following amount of redundancy pay in respect of a period of continuous service:

        (2)    Provided that the redundancy pay does not exceed the amount which the employee would have earned if employment with the employer had proceeded to the employee’s normal retirement date.

        (3)    Continuous service has the same meaning as in section 228.

316K Alternative employment

        (1)    An employer, in a particular redundancy case, may make application to the Commission to vary the amount of redundancy pay if the employer obtains acceptable alternative employment for the employee.

        (2)    This provision does not apply in circumstances involving transmission of a business as set out in section 316M.

316L Job search entitlement

        (1)    During the period of notice of termination given by the employer in accordance with subsection 661(2), an employee must be allowed up to one day off without loss of pay during each week of notice, for the purpose of seeking other employment.

        (2)    If an employee has been allowed paid leave for more than one day during the notice period, for the purpose of seeking other employment, the employee must, at the request of the employer, produce proof of attendance at an interview in order to receive payment for the time absent. A statutory declaration is sufficient proof of attendance.

316M Transmission of business

        (1)    The preceding provisions of this Division are not applicable if a business is, before or after the commencement of the Workplace Relations Amendment (A Stronger Safety Net) Act 2007, transmitted from an employer (in this subsection called the transmittor) to another employer (in this subsection called the transmittee), in either of the following circumstances:

             (a)    if the employee accepts employment with the transmittee which recognises the period of continuous service which the employee had with the transmittor, and any prior transmittor, to be continuous service of the employee with the transmittee; or

             (b)    if the employee rejects an offer of employment with the transmittee:

                   (i)    in which the terms and conditions are substantially similar and no less favourable, considered on an overall basis, than the terms and conditions applicable to the employee at the time of ceasing employment with the transmittor; and

                  (ii)    which recognises the period of continuous service which the employee had with the transmittor, and any prior transmittor, to be continuous service of the employee with the transmittee.

        (2)    The Commission may vary the operation of subparagraph (1)(b)(ii) if it is satisfied that the application of that provision would operate unfairly in a particular case.

316N Employees exempted

                 This Division does not apply to:

             (a)    employees terminated as a consequence of serious misconduct that justifies dismissal without notice; or

             (b)    probationary employees; or

             (c)    apprentices; or

             (d)    trainees; or

             (e)    employees engaged for a specific period of time or for a specified task or tasks; or

              (f)    casual employees.

Note:   serious misconduct is provided for in section 661.

316O Incapacity to pay

                 The Commission may vary the amount of redundancy pay provided for in section 316J on the basis of an employer’s incapacity to pay. An application for variation may be made by an employer or a group of employers.

Part 2—Hours of work

2 Paragraph 226(4)(g)

After “employee’s hours of work”, insert “, including the pattern of hours worked and any shift work,”.

3 At the end of section 226

Add:

Minimum rest periods – breaks

        (6)    An employer must take all measures necessary to ensure that if the working day is longer than six hours, every employee is entitled to a maximum rest break of at least 30 minutes.

Daily rest period

        (7)    An employer must take all measures necessary to ensure that in every 24 hour period, every employee is entitled to a minimum daily rest period of 11 consecutive hours.

Weekly rest period

        (8)    An employer must take all measures necessary to ensure that in each seven day period, every employee is entitled to a minimum rest period, uninterrupted by work for the employer, of 24 hours in addition to the 11 hours daily rest period specified in subsection (7).

        (9)    Where possible, the minimum weekly rest period provided for in subsection (8) must occur on Sunday.

Additional payment for work during rest periods

      (10)    If an employee is required by his or her employer to work during the rest periods prescribed in subsections (6) to (8), the employee is to be paid at a rate of two times their ordinary rate of pay for the time worked until a rest period as prescribed in subsections (6) to (8) occurs.

This amendment relates to redundancy. It amends the minimum conditions of the Australian Fair Pay and Conditions Standard for a stronger safety net on redundancy and rest breaks. The standard we are introducing in this amendment is based on an AIRC standard from 2004—except for small business having to pay a smaller scale. We also use the standard that applies in Western Australia and apply it to all employees. We do not believe that there has been any adverse economic consequence in Western Australia from such minimum conditions.

Redundancy payments are important for people to help them get on with their lives after what can be a traumatic experience. We do not believe there is a good reason for there not being minimum standards available for all employees. We believe that this is more appropriate rather than just extending the time that such payments are protected. We believe that all employees should be entitled to redundancy pay regardless of their instrument of employment.

As you will note from the table in our amendment, it scales back to 12 weeks after 10 years because this is the time when long service leave becomes available to all employees. Some states have better long service leave provisions that are available earlier, but 10 years is the latest. We believe rest breaks are also matters where there should be broad minimum standards, and that further protection can occur on an industry basis. We are facing a crisis at this point in balancing work and family life and yet no-one seems prepared to provide even the most minimal regulation to help employees out. We believe that these amendments go to providing a stronger safety net, which will be beneficial for occupational health and safety and our longer-hours culture that puts many workers at risk.

We believe that these are minimum conditions that should be part of the Australian Fair Pay and Conditions Standard. Redundancy is an area of importance. We know that it has been a matter of controversy and conjecture through the process of Work Choices and, through this amendment, we are working to address the problem of redundancies not being adequately provided to all employees. We commend this amendment to the chamber.

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

I would like to indicate Labor’s position in respect of these provisions. Labor have previously moved amendments which protect redundancy entitlements for all employees who make workplace agreements by including them in the list of protected award conditions. As we have previously outlined, the policy we are taking to the federal election will provide a statutory right of redundancy entitlements to all employees save for those employed in businesses with fewer than 15 employees.

As I understand Senator Siewert’s amendment, there are in essence two propositions. The first extends the period of operation of preserved redundancy entitlement when an agreement is terminated or transmitted from 12 months to the end of the employee’s employment with their employer. I have dealt with that by indicating Labor’s policy position. The Greens have also proposed an amendment to insert a statutory redundancy entitlement in accordance with the AIRC test case. Whilst this is largely in accordance with Labor’s outlined policy position, it does not provide an exemption from redundancy payments for small business, which our policy contains. On that basis, Labor will not support this amendment. We have made our position on redundancy clear in our Forward with Fairness document, which provides both flexibility and fairness.

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

The Australian Democrats support the view that redundancy provisions should be provided through the Workplace Relations Act. However, we take the view that you have to be much more flexible than the amendments put before us. We believe that the broad basis for redundancy provisions has been outlined by the Australian Industrial Relations Commission in its test case and that the proper extension of that test case should be to the safety net—namely, through the award system. The Democrats have the view that awards should vary. We believe awards should be industry based and national rather than state based. They should be limited to a minimum number of allowable matters—we recommended at least 16—but the redundancy provisions should be designed as appropriate for the industry and, where an award is not applicable, they need to be worked out in an enterprise. Obviously, where there is a collective agreement, it should take into account those provisions. So we tend to prefer that the principles of redundancy are established in legislation but that the application of redundancy provisions be varied according to both enterprises and awards.

Furthermore, we are of the view that there are businesses that are just never in a position whereby they can provide redundancy. Micro and small businesses sometimes fall into that category, and it would be unwise to impose a legislative provision which they would simply be unable to meet. Whilst we respect the intention and the initiative of the Greens amendments for similar reasons to Labor but with our own slant on these things, we regret that we are unable to support them.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First support greater protection for redundancy and the issues of hours of work, breaks and those sorts of things. The intention of the Greens amendments is to strengthen that protection. Family First has two amendments coming up, and the second of those will achieve what needs to be set out in a more flexible way than what is being proposed here. For those reasons we will not support the Greens amendments but certainly we support the idea of greater protection for workers’ redundancy entitlements and their hours of work.

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

The government opposes the amendment. It basically deals with two issues: redundancy and hours of work. The government considers that parties should be free to bargain the terms and conditions that best suit their circumstances, and adding redundancy provisions to the standard reduces their ability to do so. Most importantly from the government’s perspective, the amendment does not include any protection for small business. The government legislated to protect small business with fewer than 15 employees from redundancy pay obligations.

The amendment would undo that protection. It will result in a cost imposition that may be unaffordable for many small businesses and a disincentive to growth in the small business sector. However, the government is keenly aware of the importance that some employees may place on redundancy entitlements. It is for this reason that the government last year moved amendments to preserve redundancy arrangements for 12 months when agreements are unilaterally terminated by the employer. Having said that and considered the matter further, we will support Senator Fielding’s amendment to extend this period to 24 months.

In relation to the issue of hours of work, the government opposes this aspect as well on the basis that the proposed amendment is unnecessary and, in many cases, unworkable. It seeks to adopt the one-size-fits-all approach that would severely hinder enterprise level flexibility. It is important to note that rest breaks are a protected award condition. This means that an entitlement to a rest break cannot be excluded or modified without fair compensation. The act already provides employees who are instrument-free with a new entitlement to a meal break if they work more than five hours continuously. Agreements and contracts can provide for meal or rest breaks. The proposed amendment would require an employer to provide a rest break in the following circumstances: a 30-minute rest period for each six hours worked; an 11 hour rest period in every 24-hour period and a 24-hour rest period in each seven-day period. These proposals limit the ability of employers and employees to negotiate arrangements that best suit their needs at the enterprise level. Senator Siewert, coming from Western Australia as she does, and Senator Murray would undoubtedly be aware of the situation that exists within the mining sector, where people work 14 days on and then have one week off.

That is by way of arrangement, whereas that which Senator Siewert is proposing would make that sort of arrangement impossible. That is why we as a government once again say that when you try to impose what you think from your office desk is a good, fair system, it might not necessarily take into account the needs of a particular enterprise or indeed the wishes of the workers. That is why we say these things need to be carefully balanced. They are matters that we say are important but, if people want to trade these things away on the basis of fair compensation, then they can. Often workers and their employers have come to arrangements that suit both sides and, as a result, assist the productivity of the country and the wealth that we are able to create and then share with our fellow Australians.

Question negatived.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

by leave—I move Family First amendments (1) and (2) on sheet 5302:

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

(2)    Page 83 (after line 20), at the end of the bill, add:

Schedule 7—Preserved redundancy provisions

Part 1—Length of period of preservation

Workplace Relations Act 1996

1  Subsection 347(7) (note)

Omit “12”, substitute “24”.

2  Paragraph 399A(3)(a)

Omit “12”, substitute “24”.

3  Paragraph 598A(3)(a)

Omit “12”, substitute “24”.

4  Subclause 3(4) of Schedule 7 (note)

Omit “12”, substitute “24”.

5  Paragraph 6A(4)(a) of Schedule 7

Omit “12”, substitute “24”.

6  Subclause 18(3) of Schedule 7 (note)

Omit “12”, substitute “24”.

7  Paragraph 20A(4)(a) of Schedule 7

Omit “12”, substitute “24”.

8  Paragraph 21A(4)(a) of Schedule 8

Omit “12”, substitute “24”.

9  Paragraph 21D(4)(a) of Schedule 8

Omit “12”, substitute “24”.

10  Paragraph 27A(3)(a) of Schedule 9

Omit “12”, substitute “24”.

11  Application

The amendments made by this Part apply to agreements terminated after the commencement of item 31 of Schedule 3 to the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006.

Part 2—Notice requirements

Workplace Relations Act 1996

12  Paragraph 603A(3)(c)

Omit “12”, substitute “24”.

13  Paragraph 6B(3)(c) of Schedule 7

Omit “12”, substitute “24”.

14  Paragraph 20B(2)(c) of Schedule 7

Omit “12”, substitute “24”.

15  Paragraph 21B(3)(c) of Schedule 8

Omit “12”, substitute “24”.

16  Paragraph 21E(2)(c) of Schedule 8

Omit “12”, substitute “24”.

17  Paragraph 29A(3)(c) of Schedule 9

Omit “12”, substitute “24”.

18  Application

The amendments made by this Part apply to notices given after the commencement of this item.

Part 3—Contingent amendments

19  Subparagraph 346YA(3)(b)(i)

Omit “12”, substitute “24”.

20  Subparagraph 346ZA(2)(b)(i)

Omit “12”, substitute “24”.

This set of amendments, by doubling the protection period of workers’ redundancy benefits from 12 months to two years, tries to avoid the Tristar fiasco happening again. Family First’s restoring family work balance bill proposed that to be extended to five years, and we have been able to get support for two. The amendments would deter employers from trying to avoid paying workers their full redundancy entitlements, which are vital for workers and their families. Currently workers’ redundancy payments are protected by law for up to 12 months after workplace agreements are terminated. Twelve months is not adequate, and Tristar shows this to be particularly the case.

You may recall that Tristar is trying to slash its redundancy bill by keeping its 29 staff at a Sydney plant without any work for them. You may recall that, under its workplace agreement which expired in February, the workers would be entitled to a total of about $4.5 million if they were made redundant now but would get only about one-quarter of that, or just over a million dollars, if they were made redundant more than a year after the employment contract expires. The Tristar situation is totally unfair and un-Australian, and for an employer to try to exploit the law to take away the redundancy entitlements of workers in that way is just not on. Family First appreciates the support of the government and the opposition to extend the protection to two years.

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

I will outline Labor’s position on Senator Fielding’s first set of amendments. As I have indicated to Senator Fielding, the opposition will support these amendments, but I do want to make a couple of comments. First, I make this point. The Tristar issue primarily revolved around the fact that the company refused to dismiss employees, as Senator Fielding outlined. Whilst the move from 12 to 24 months might assist with that, the reality is an employer could still choose to simply refuse to engage in the triggering event for the entitlement, which is in fact the dismissal. To some extent these provisions will not ameliorate that, although I recognise Senator Fielding’s motivation. It is a fact that 24 months is certainly better than 12, and Labor will support these provisions. I reiterate federal Labor’s policy, which is to provide a statutory right of redundancy entitlement to all employees, save for those employed in businesses with fewer than 15 employees. This constitutes real protection for redundancy entitlements and this would have protected Tristar employees from day one.

I also note that the government states that it will support this amendment. I will wait with interest to see if the government intends to support Senator Fielding’s next set of amendments, which are intended to include redundancy pay within the definition of protected allowable award matters. Of course, that would in fact require that any subsequent agreement altering a redundancy entitlement would need to be assessed against the new fairness test. I also make the point that, under the government’s laws, people’s redundancy entitlements can be abrogated by a new agreement and that, unless the government supports Senator Fielding’s amendment or something similar, the fairness test will not ensure that an employee is at least fairly compensated should such redundancy entitlements be traded away in that new agreement. So the government’s colours on redundancy will be demonstrated again later in the chamber unless the minister has instructions to support both of Senator Fielding’s amendments, in which case we would say it is belated but appropriate.

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

The Democrats support these amendments as a modest improvement to the existing system.

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

The Greens will also support the amendments. We do not think that the amendments go as far as our amendments did. We have tried to move a series of amendments that we believe provide much better protection as to redundancy and, instead of limiting it to 12 months, we tried to extend it so it was open-ended. We think that would have been a better approach, but an extra 12 months is better than nothing, I have to say.

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

Briefly, the government, as Senator Fielding has indicated, support the amendments. We do not support the next amendment, but we will deal with that during the discussion on that one. I note, in relation to these particular amendments, that they would mean in the Tristar context that an employer would have to deliberately employ somebody for two years to avoid the redundancy provisions.

I must say that, in this day and age, and I may well be wrong on this, I am not sure that redundancy provisions are being made which go for more than 104 weeks. As a result, I would think that this proposal really does cover the field and provides the security for those workers who see their redundancy provisions as being important. We believed in our first legislation that 12 months would be enough. But, as we have always said, we are willing to learn from experience and see what needs to be done to further enhance workers’ protections. This is a reasonable and balanced approach, and that is why we as a government are willing to support these Family First amendments.

Question agreed to.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

by leave—I move Family First amendments (1) and (2) on sheet 5310:

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

(2)    Page 83 (after line 19), at the end of the bill, add:

Schedule 7—Protected allowable award matters etc.

Workplace Relations Act 1996

1  Subsection 354(4) (after paragraph (h) of the definition of protected allowable award matters)

Insert:

           (ha)    redundancy pay;

2  After subsection 513(3)

Insert:

     (3A)    To avoid doubt, the matter of redundancy pay is, and is taken to have always been, a matter covered by the following provisions:

             (a)    paragraph (1)(a);

             (b)    paragraph (1)(n).

3  After subclause 17(1) of Schedule 6

Insert:

     (1A)    To avoid doubt, the matter of redundancy pay is, and is taken to have always been, a matter covered by the following provisions:

             (a)    paragraph (1)(b);

             (b)    paragraph (1)(p).

4  Subclause 25A(4) of Schedule 8 (after paragraph (h) of the definition of protected allowable award matters)

Insert:

           (ha)    redundancy pay;

5  Subclause 52(3) of Schedule 8 (after paragraph (g) of the definition of protected allowable award matters)

Insert:

           (ga)    redundancy pay;

6  Application of amendments

The amendments made by items 1, 4 and 5 apply in relation to a workplace agreement lodged after the commencement of this item.

The evidence given by the ACTU and others to the committee inquiry into the Family First bill, the Workplace Relations (Restoring Family Work Balance) Amendment Bill 2007, was that even if Family First managed to extend the redundancy protection to five years—although it has now been cut back to two years—Work Choices does not protect retrenchment pay, because there is no guarantee that retrenchment pay will be included in an agreement. Family First is concerned about that. Workers may easily sign workplace agreements without realising that redundancy is not a protected award item—and maybe without realising the full implications of that not being a protected award item. In fact, workers and their families tend to concentrate on day-to-day issues and may assume that they will be entitled to redundancy payments as a matter of course. So Family First moves this second group of amendments as a way of tightening up the issue of redundancy for workers and making it part of a protected award condition.

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

I note the minister’s indication in discussion of the previous amendments that the government will not support this aspect of Senator Fielding’s amendments. I want to be clear with the chamber about what that means. Yet again, the Howard government is indicating that it is not prepared to protect redundancy entitlements, which have existed within the Australian industrial relations scheme for many years. This is the government again saying that it is not prepared to place redundancy pay into the category of protected award conditions. So that means they are not protected—even though ‘protection’ under the Work Choices legislation is one of those Orwellian terms which certainly in the past has had very little meaning and will only have some meaning after the introduction of the fairness test.

The fact that the government will oppose this amendment means that redundancy pay will not be considered as part of the fairness test. What that means in practical terms is that an employee who has negotiated a reasonable redundancy entitlement over a period of employment—or who simply has the minimum redundancy entitlement as per the standard AIRC test case—can have that removed by a ‘take it or leave it’ AWA or by a new agreement. Under the government’s new so-called fairness test, they will not receive any fair compensation for those redundancy entitlements being traded away. So we are, yet again, very clear on the Howard government’s attitude to redundancy entitlements. I do agree with Senator Fielding that, for many working families, this is often a significant source of security. It is something that people and families rely on. It has been in place for many years, in recognition of the financial dislocation that being made redundant causes an employee and their family.

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

The Democrats support the view that awards should be limited in extent. We supported the fact that federal awards were reduced from an open-ended approach to 20 allowable award matters. We now think that, in view of the way modern industrial relations is progressing, the safety net will permit further reduction in allowable award matters. In our own policy we think that 16 is the appropriate number. Having got to that position, you then have to ask: what should those allowable award matters be? In our view, redundancy should be one of those. It is a vital and integral part of the safety net that should apply.

What I like about Senator Fielding’s approach is that it replicates the Democrats long-term approach that, firstly, redundancy is important and should be protected in these ways; and, secondly, it should not be overly prescriptive—in other words, the development of the actual terms of redundancy should be relevant to the industry, relevant to the enterprise and relevant to the individual. The statute should not seek to be overly prescriptive in that area; it should merely require that redundancy pay be properly protected. So, in view of our long championing of this particular aspect of core conditions that should apply to Australians in a First World society, we of course do support these amendments.

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

The government oppose this amendment, as previously indicated. The law provides that redundancy provisions are allowable, but if the parties do not want to have them as part of their agreement then we believe that is appropriate for them to consider.

If it were something that were to be considered as an absolute, then of course you would not be giving exemption to small businesses that employ fewer than 15. So there is already an undermining of the assertion that this is an absolute fundamental, because I think we are all agreed—other than the Greens—that small businesses that employ fewer than 15 should be exempted. We also have the situation where there may be project-specific employment and also casual workers for whom it may be inappropriate, and that is why we say that these matters should be allowed to be dealt with in the marketplace on the basis of what is best suited to the needs of the workers and the employers. As a result, we as a government oppose the amendments.

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

The Greens, as will have become evident during the debate, think that redundancy is a very important issue. We did seek to move an amendment to deal with the issue of redundancy by ensuring that it was a minimum condition of the Australian Fair Pay and Conditions Standard. Family First has taken a slightly different tack, but again it addresses the issue of redundancy. I think none of us on this side of the chamber is surprised that the government will not support it. A range of amendments should have been made to this bill to make it a true Stronger Safety Net and to provide fairness, because there are many holes and loopholes in the so-called safety net that in fact have not been amended. Honestly, of course I am not surprised that the government will not support it.

The minister was right when he said that the Greens would not support an exemption for small business. We believe that these rules should apply, the same as we believe that unfair dismissal rules should apply, to everybody—all workers and all businesses. That is the same as we believe should apply for people’s expectancy of redundancy. So, while we think that our amendment was better, obviously we support moves to improve redundancy and require it as a protected allowable matter. It is a bit of a different approach, but we support it—but I am not surprised that the government does not.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.