Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering government amendment (1) on sheet PA412 moved by Senator Wong. The question is that the amendment be agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Siewert, I think you had a question on this. If it is not a question that is going to alter your position on it then I wonder if we can deal with this amendment first and I can undertake to come back to you when I have officials in here on the issue you raised.

Question agreed to.

by leave—I move government amendments (2) to (4) on sheet PA412 together:

(2)    Schedule 1, item 2, page 5 (line 24), after “workplace agreement is”, insert “, so far as the context permits,”.

(3)    Schedule 1, item 2, page 5 (lines 31 and 32), omit “employee’s overall terms and conditions of employment”, substitute “overall terms and conditions of employment of the employee whose employment is subject to the agreement”.

(4)    Schedule 1, item 2, page 6 (line 4), after “employment of the employees”, insert “whose employment is subject to the agreement”.

These amendments are minor corrections to ensure technical consistency of reference. They will clarify that for the purposes of the no disadvantage test a reference to an employee means a reference to employees whose employment is subject to an agreement and includes a future employee but only insofar as the context permits—for example, in the context of an ITEA for a person not yet employed or a greenfields agreement covering persons not yet employed.

Question agreed to.

The Temporary Chairman:

We now move to item 3, the Australian Greens amendments.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Siewert, I do have some notes here. Perhaps I can read them and then you can indicate if this addresses sufficiently the issues you raise. I think you asked how this amendment would prevent employers from terminating an employee’s employment for the purpose of re-engaging them on an ITEA. The government has now passed an amendment that will enable eligible employees to make ITEAs with previous employees following concerns expressed to the Senate committee. ITEAs would not be available in circumstances where the employee’s employment was brought to an end for the purpose of re-engagement on an ITEA. If this occurred, a fundamental requirement for the ITEA would not have been met; and, if lodged, the document could not operate as a workplace agreement. This is a result of other changes the government is making in the bill—in particular the new section 347A—to ensure that only genuine workplace agreements operate. An employee whose employment was terminated because the employer wanted to re-engage the employee on an ITEA could have remedies under the freedom of association provisions of the act. I will pause here to see if Senator Siewert needs any further information on this issue.

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

Could you just outline very quickly the new section—I think you said it was section 3.5.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The only section I referred to in the answer I just read was the new section 347A.

The Temporary Chairman:

Senator Siewert, is this explanation dealing with the third amendment listed on the sheet? If it is not, are you moving the third amendment down on this sheet?

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

Yes, just for clarification, I asked a question prior to question time relating to the first government amendment. It is not related to the amendment I am about to move. I seek leave to move Greens amendments (1) and (2) on sheet 5449 together.

Leave granted.

I move:

(1)    Schedule 1, item 2, page 5 (lines 29 to 33), omit subsection 346D(1), substitute:

        (1)    An ITEA passes the no-disadvantage test if the Workplace Authority Director is satisfied that:

             (a)    the ITEA does not result, or would not result, on balance, in a reduction in the employee’s overall terms and conditions of employment under any reference instrument relating to the employee; and

             (b)    the ITEA would not result, on balance, in a reduction in the employee’s overall terms and conditions of employment under any law of a State or Territory that was in existence immediately before the reform commencement that the Workplace Authority Director considers relevant; and

             (c)    the ITEA complies with the Australian Fair Pay and Conditions Standard.

(2)    Schedule 1, item 2, page 6 (lines 1 to 6), omit subsection 346D(2), substitute:

        (2)    A collective agreement passes the no-disadvantage test if the Workplace Authority Director is satisfied that:

             (a)    the agreement does not result, or would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees under any reference instrument relating to one or more of the employees; and

             (b)    the agreement would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees under any law of a State or Territory that was in existence immediately before the reform commencement that the Workplace Authority Director considers relevant; and

             (c)    the agreement complies with the Australian Fair Pay and Conditions Standard.

These amendments relate to compliance with standards and certain laws. Part of our concern is addressed by the government’s next amendment, which relates to long service leave. We did articulate in our additional comments to the Senate committee report that we had some concerns about long service leave which came up during the inquiry. However, the government’s amendments do not address all of our concerns—specifically around the fact that the NDT does not take into account the Australian fair pay and conditions standards. We believe it is illogical for an agreement to be passed by the Workplace Authority which breaches the act in any way. While the Workplace Ombudsman deals with compliance with the AFPCS, the Workplace Authority could easily ensure that the agreement is at least lawful. We believe that it does not make any sense for it not to be actually stated in the act that they are required to consider and comply with the standards. We believe the most appropriate thing, if they need to be in the agreement, is that they should actually be in the act. If they are not in the act, how does an employee know if they have actually been complied with? The onus is then on the employee to know that the standards have been complied with. But if it is in the act then they know that their agreement has to comply with those standards. So it would be a much simpler process for them to actually be in the act.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am not sure if the opposition is speaking on this but I would like to indicate that the government is not supporting this amendment. I just want to be clear with Senator Siewert what the effect of the government’s bill is. An ITEA must not leave an employee worse off over all when compared with the underlying instrument in the workplace—and this may be, for example, a collective agreement or an award. I am advised that the fair pay and conditions standard applies by force of law where the standard provides a more favourable outcome than that provided in their workplace agreement. So an agreement cannot purport to exclude the standard. In our view this amendment is unnecessary. We already have a situation where the standard applies by force of law and where ITEAs must be compared against the underlying instruments for the purposes of considering whether or not an employee is worse off. For those reasons the government is not supporting this amendment.

Question negatived.

I move government amendment (5) on sheet PA412:

(5)    Schedule 1, item 2, page 6 (after line 6), after subsection 346D(2), insert:

     (2A)    For the purposes of subsection (1) or (2):

             (a)    a law of a State or Territory that:

                   (i)    relates to long service leave; and

                  (ii)    immediately before the agreement was lodged, applied to an employee referred to in that subsection, or would have applied to such an employee if he or she had been employed by the employer at that time;

                      is taken, to the extent that it provides for long service leave, to be a reference instrument relating to the employee; and

             (b)    if, apart from this subsection, the only reference instrument relating to the employee is a designated award for the employee—the designated award is to be disregarded to the extent (if any) that it provides for long service leave.

This inserts a new subsection. The amendment would further strengthen the agreement-making safety net by making state and territory long service leave laws part of the no disadvantage test where they are not already part of a relevant collective agreement or general instrument. Such laws would not necessarily form part of the no disadvantage test for employees to whom they did not actually apply before a workplace agreement was launched. Where, for example, an applicable award or collective agreement is the basis for the no disadvantage test and excludes a state or territory long service leave law, the Workplace Authority Director would be required to have regard to the agreement or award. If an award is designated for an employee, for example because there is no actually applicable award, and it contains long service leave provisions, the Workplace Authority Director would only have regard to the state or territory law that applied in fact and not the designated award in respect of long service leave. This is consistent with the approach that designated awards are used for the purpose of the no disadvantage test where there is no otherwise applicable instrument.

In short, the amendment ensures that state and territory long service leave laws are part of the no disadvantage test where there is no other federal award or agreement for the purposes of that test which excludes state or territory long service leave law.

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

I think this is a very good amendment which actually improves protections for wages and conditions, so I support it.

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

As I indicated earlier, this goes part way to addressing the issues I had in my previous amendments, and the Greens will be supporting it.

Question agreed to.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government amendment (6) on sheet PA412:

(6)    Schedule 1, item 2, page 6 (after line 27), at the end of section 346D, add:

        (8)    To avoid doubt, if there is a reference instrument in relation to one or more, but not all, of the employees whose employment is subject to a collective agreement:

             (a)    in a case where the agreement passes the no disadvantage test under subsection (2)—it passes the test in relation to all employees whose employment is subject to the agreement; or

             (b)    in a case where the agreement does not pass the no disadvantage test under subsection (2)—it does not pass the test in relation to any employees whose employment is subject to the agreement.

This amendment clarifies the operation of the no disadvantage test where there is a reference instrument in relation to some but not all employees. Currently under that test a collective agreement must be tested if there is a reference instrument in relation to one or more employees and, where there is no reference instrument in relation to any employees, a collective agreement is taken to pass the test. This amendment clarifies that, where there is a reference instrument for one or more employees but not every employee, two things apply. First, a collective agreement that passes the no disadvantage test will pass in relation to all employees, including those for whom there is no reference instrument. Second, a collective agreement that does not pass the no disadvantage test will not pass in relation to any employee, including those for whom there is no reference instrument.

Question agreed to.

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

I moved Greens amendment (3) on sheet 5449:

(3)    Schedule 1, item 2, page 9 (after line 25), after subsection 346G(1), insert:

     (1A)    An employer who makes an application under subsection (1) must provide a copy of the application to the relevant employee or employees, as the case may be, within seven days of making the application.

This relates to employees being informed. We believe employees should be informed of the designated award that is being applied. Under new section 346G employers can apply to the Workplace Authority for a particular award to be the designated award. The designated award becomes the award an agreement is tested against and therefore has a direct effect on whether the wages and conditions in an agreement are fair. The designated award could affect the level of take-home pay for an employee depending on what conditions have been bargained with—that is, if an award contains a particularly penalty rate or not. It seems fair that, given the importance of the designated agreement to employees, they be informed which award the employer is proposing. We believe this is a question of natural justice and that employees have a right to be actually properly informed of decisions that directly affect them. We do not actually see why this should not be in the act.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I indicate that the government is not supporting this amendment. The government’s bill does ensure that the Workplace Authority is able to consult more widely than previously when designating awards, including with employees and their representatives. I should also advise Senator Siewert that this is one of the issues that was the subject of consultation between the government and the National Workplace Relations Consultative Committee and I think something called COIL, which is the Committee on Industrial Legislation, where these issues were considered.

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

Yes, they do have to consult, but there is no requirement, as I understand it. As issues were raised with the committee that employees have to be informed of the designated award, I am wondering why the government is resisting the fact of actually keeping employees fully informed.

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

I want the minister to answer this question at the same time, because it sounds as if the amendment will go down. Will there be any restriction or impediment put in place whereby an employee or a union representing a set of employees would not be able to ask which award or awards has been referred to? It is one thing not to provide them automatically. That involves some bureaucratic kinds of procedures and maybe that is a little difficult. But if someone wants to know what award was being referred to, would they be able to ask for that and receive information?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

First in relation to Senator Siewert’s proposition, as I said, the government’s bill ensures that the Workplace Authority can consult more widely than previously when designating the award and we think that is the appropriate way in which to deal with this issue.

In answer to Senator Murray’s question—which I believe was: is there any restriction or impediment on employees asking for it?—I am advised that that is not the case.

Question negatived.

by leave—I move government amendments (7), (9) and (11) on sheet PA412:

(7)    Schedule 1, item 2, page 10 (lines 6 to 25), omit subsection 346G(3).

(9)    Schedule 1, item 2, page 12 (lines 14 to 18), omit subsection 346H(2), substitute:

        (2)    The Workplace Authority Director must determine that an award is a designated award for the employee or employees referred to in subsection (1), if the Workplace Authority Director is satisfied that:

             (a)    on the date of lodgment of the agreement or variation (as the case requires), the employee or employees are or would be 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 or employees:

                   (i)    are usually regulated by an award; or

                  (ii)    would, but for a workplace agreement or another industrial instrument having come into operation, usually be regulated by an award; and

             (b)    there is an award that satisfies the requirements specified in subsection (3).

(11)  Schedule 1, item 2, page 12 (after line 37), after section 346H, insert:

346HA  Effect of State awards etc.

                 For the purposes of paragraphs 346G(2)(a) and 346H(2)(a), 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 would, but for an industrial instrument or a State employment agreement having come into operation, usually have been so regulated immediately before the reform commencement; or

             (b)    are usually regulated by any of the following instruments:

                   (i)    a transitional Victorian reference award (within the meaning of Part 7 of Schedule 6);

                  (ii)    a common rule in operation under Schedule 6;

                 (iii)    a transitional award (within the meaning of Schedule 6) other than a Victorian reference award (within the meaning of that Schedule), to the extent that the award regulates excluded employers in respect of the employment of employees in Victoria;

                      or would, but for a workplace agreement or an industrial instrument having come into operation, usually be so regulated.

These amendments go to sections 346G(3), 346H(2) and 346HA, a new section. They are technical amendments to ensure that the ‘usually award regulated’ requirement applies to all designations before and after lodgement of a workplace agreement and to ensure that the references to relevant instruments are correct. Amendment (11) would insert a new provision, section 346HA, which would ensure that the references to each instrument listed above reflect their correct time of operation and deal with the concept of ‘usually regulated by an award both before and after lodgement’. Subsection 346G(3) of the act would no longer be required because it only applies to pre-lodgement designation and would be deleted by amendment (7).

Proposed sections 346G and 346H of the bill relate to the designation of awards for the purpose of the no disadvantage test where there is no other reference instrument against which to test a workplace agreement. Under proposed section 346G—that is, the section dealing with award designation before a workplace agreement is lodged—an award can be designated if the employee or employees in question are employed in an industry or occupation in which the terms and conditions of the kind of work are or would usually be regulated by an award. Amendment (9) would amend section 346H to correct a technical oversight to ensure that this requirement—that is, the ‘usually award regulated’ requirement—also applies in relation to award designation after a workplace agreement has been lodged.

Under proposed section 346G(3) of the bill a reference to an award regulated industry or occupation includes an industry or occupation in which the terms and conditions of employment were usually regulated immediately before the commencement of the Work Choices act by a state award, a transitional Victorian reference award or a common-law or transitional award other than a Victorian reference award to the extent that the award regulates excluded employers in respect of employment of employees in Victoria. Of these instruments, only state awards operated before the commencement of the Work Choices act. The rest were created as federal instruments on 27 March 2006. It is a very lengthy explanation and, as I said at the outset, they are really quite technical amendments.

Question agreed to.

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

by leave—I move Australian Greens amendments (4), (5), (6), (7), (8) and (11) on sheet 5449 together:

(4)    Schedule 1, item 2, page 13 (line 31), omit “that”, substitute “to”.

(5)    Schedule 1, item 2, page 13 (line 34) to page 14 (line 5), omit subsection 346K(1), substitute:

        (1)    This Subdivision applies to all workplace agreements.

(6)    Schedule 1, item 2, page 14 (line 9), omit “to which this Subdivision applies”.

(7)    Schedule 1, item 2, page 14 (after line 28), at the end of paragraph 346M(1)(a), add:

                 (iv)    if the agreement is a union greenfields agreement or a multiple-business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement;

(8)    Schedule 1, item 2, page 15 (after line 9), at the end of paragraph 346M(2)(a), add:

                 (iv)    if the agreement is a union greenfields agreement or a multiple-business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement;

(11)  Schedule 1, item 2, page 17 (line 4), at the end of subsection 346Q(2), add:

           ; (d)    if the agreement is a union greenfields agreement or a multiple-business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement.

These amendments relate to the issues around agreements operating from approval. Under the current arrangements in the bill, certain of the agreements operate from approval—that is, once they are approved by the Workplace Authority then the agreement passes the NDT—and other agreements come into operation on lodgement, which is quite confusing. We received a number of submissions about this during the committee inquiry.

Those agreements that come into operation on lodgement—that is, new employer ITEAs and greenfields agreements—have the potential to require the compensation provisions to be accessed if the agreement does fail the NDT. For employees on ITEAs, we believe this is a particular problem. The compensation provisions are quite complicated and they are not easy for individuals to access. We believe it is much more logical for all agreements to come into operation on approval and bypass the need for a complicated compensation process.

There is an issue around backlog and timeliness of approvals which we believe is a matter of administration and should be dealt with in that way, not through two different types of agreement regimes. As I said, we believe that makes the act much more complicated, and the present system actually replicates the process it goes through now, the fairness test, which we believe is unfair and is generally acknowledged to be unfair.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I indicate that the government is opposing amendments (4) to (8) and (11). The principal amendments moved by Senator Siewert are really amendments (4), (5) and (6), which, in effect, require that all workplace agreements operate from approval. The government’s position is that workplace agreements for new employees—that is, new employee ITEAs or greenfields agreements—should apply on lodgement to provide certainty for these parties. Other agreements, such as ITEAs for existing employees and union or employee collective agreements, will only operate from approval. These are transitional measures which reflect the move from the lodgement-only system under Work Choices to the Labor government’s new workplace relations system from 2010. As Senator Siewert is no doubt aware, under that new system all workplace agreements will be assessed and approved by Fair Work Australia. In effect, amendments (7), (8) and (11) are, in great part, dependent on the primary set of amendments being passed and therefore we would oppose those as well.

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

As the minister and participants in the committee would know, this is an important issue, and has always been an important issue in workplace agreements. If an agreement only has provisions to operate from approval and there is a long time gap between lodgement and approval, workers and employees can be at legal risk. You actually need a legal instrument which applies from the moment of employment under a particular agreement. If you have a very slick approval system, of course, the problem falls away because lodgement and approval can occur within a short or almost simultaneous time span. But that is not possible or guaranteed in any administrative situation.

So, on balance, I have tended to favour those who think lodgement is the better time for provisions to come into play, although that can raise great difficulties if they are subsequently not approved. I recognise that you can end up with the worst of all worlds, whichever system you go for.

I have sympathy for the intention of the Greens, but my instinct is that the government’s choice is right given where we are at with the various regulators and authorities, and the distance, as I understand it, between when lodgement occurs and when approval is likely to occur. I cannot see that improving vastly in the near future, so I am inclined to support the government’s direction here.

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

Under the process in the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008, it is highly likely that some employees will in fact be on unfair ITEAs and unfair individual agreements. We do not believe that that is appropriate.

The government came into office saying that it would bring in a new, fairer system and there are certainly elements of that here. The way to make this system even fairer is to accept this amendment and see that all agreements operate from approval. We do appreciate that there are some time lags and significant backlogs with the existing process. I found it ironic that the opposition questioned the government earlier about that, when it was the very system that they had set up. A number of us had said all along that the system was doomed to failure and it would end exactly the way that it has ended—although I should use the word ‘result’ because it has not ended yet. We believe that it is much fairer to employees if agreements operate from approval. We also believe that having two different systems, lodgement and approval, makes the system even more complicated.

Question negatived.

The Australian Greens oppose schedule 1 in the following terms:

(12)  Schedule 1, item 2, page 17 (line 30) to page 30 (line 20), Subdivisions D and E TO BE OPPOSED.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that subdivisions D and E stand as printed.

Question agreed to.

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

by leave—I move Australian Greens amendments (9) and (10) on sheet 5449 together:

(9)    Schedule 1, item 2, page 15 (after line 25), after section 346M, insert:

346MA Workplace Authority Director must provide written reasons

        (1)    If the Workplace Authority Director makes a decision under section 346D that an agreement:

             (a)    passes the no-disadvantage test; or

             (b)    does not pass the no-disadvantage test;

then, in response to a request by any of the following parties:

             (c)    the employer in relation to the agreement;

             (d)    an employee whose employment is subject to the agreement;

             (e)    if the agreement is a union collective agreement or a multiple-business agreement that would be a union collective agreement but for subsection 331(1)—the organisation or organisations bound by the agreement;

              (f)    if the agreement is a union greenfields agreement or a multiple-business agreement that would be a union greenfields agreement but for subsection 331(1)—the organisation or organisations bound by the agreement;

the Workplace Authority Director must provide written reasons for the decision.

(10) Schedule 1, item 2, page 15 (after line 25), after section 346M, insert:

346MB Review of decisions of Workplace Authority Director

If the Workplace Authority Director makes a decision under section 346D in relation to an agreement, any of the parties to the agreement in paragraphs 346MA(c) to (f) may appeal to the Federal Magistrates Court for a review of the decision in accordance with the Administrative Decisions (Judicial Review) Act 1977.

This again relates to the issue of natural justice and people being informed of decisions. It relates to the amendment that I moved before, which concerned employees having the right to know what designated awards are being used. This one has a similar essence in there being a requirement for workers to be able to access information and to be told about decisions that are affecting them. This came up during the inquiry and I would recommend that people look in particular at Professor Stewart’s comments and submission. We believe it is important for workers and employees to get written reasons and the right of appeal and to be able to look at the decisions on the NDT. It is not just a matter of natural justice but also a matter of basic accountability measures for the NDT. We have raised this previously. We raised it last year in respect of the fairness test and we will continue to raise it.

We believe that decisions on the no disadvantage test do materially affect people. The test goes to people’s wages and conditions and they have a right to know about those wages and conditions because these are of fundamental concern to them. Given the potential seriousness of the decisions made by the Workplace Authority and the requirement for basic accountability measures, we believe that it is a question of natural justice that people be allowed to know this information.

Also, the bill is light on details on consistency of application of the NDT, so how will we know about the basic consistency of application if written reasons are prevented from being given? When a similar no disadvantage test operated prior to Work Choices, there were real issues with consistency of decisions and also with fairness. The application of the test by the then Office of the Employment Advocate resulted in employees losing conditions and receiving inadequate compensation. I remember very vividly talking to workers who were coming to us with concerns around how the Office of the Employment Advocate was working at the time. We should be learning from the past. People should have access to written reasons for decisions. I would therefore like to ask the government why this was not taken into account when the bill was drafted in the first place.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

As senators will know, no written reasons were required under the previous government’s fairness test or under the system pre-Work Choices. The government will ensure that the authority provides information to parties to agreements about the approach they will apply to the assessment of workplace agreements. The government will also ensure that the Workplace Authority informs parties to agreements when they have determined whether an agreement passes or fails the no disadvantage test. However, the government has inherited a backlog of around about 150,000 agreements that require assessment by the Workplace Authority. We are working with the authority to clear this backlog, which arose as a result of the previous government’s decisions.

The reality is that it would take additional time to check compliance with the standard in every agreement, particularly given that the standard, which is 140 pages in length, is complex and convoluted and would require a separate assessment to the global no disadvantage test the government has put in place for agreements during the transition period. For these reasons, the government is not supporting the Greens amendment.

In relation to amendment (10), the government reiterates that we believe our no disadvantage test is a fairer test with simpler rules. The government reiterates its desire for a system which provides certainty to employees and employers, including certainty that agreements will be processed and assessed and the parties notified within a reasonable time frame. As senators will be aware, the powers and functions of Fair Work Australia, which the government promised prior to the election, will be developed as part of our substantive workplace reforms later this year.

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

I can understand that the government is dealing with a big backlog of agreements through the failed processes of the past. However, I do not think past unfairnesses justify future unfairnesses. There is an absolute failure in natural justice here if people cannot find out why their agreement failed or passed, particularly what the reasons were for a decision under the NDT. Also, it is a failure of natural justice to be unable to appeal those decisions. As I said, I totally understand that the government is dealing with a large issue here. They need to find an efficient way to deal with it, but that does not mean that workers should continue to be subject to unfair procedures. This bill is about improving the system—the title of the overall package is Forward with Fairness. It is not fair if people do not have access to natural justice and to the reasons for, and the inability to appeal, decisions that directly affect their lives. We have past examples. You need only to have gone to estimates in the past to listen to issue after issue that came up with regard to the Office of Employment Advocate. Cases in relation to the work of that office were continually brought up and asked about at estimates. Therefore we very strongly believe that these two amendments afford a bit of extra fairness in this process.

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

Without going to the actual wording of the Greens amendment, I want to deal with the issue of principle that is before us. I think that Senator Siewert is right about the issues of due process. As a legal practitioner herself, the minister would know that a basic in law is that a decision of any authority making a judgement on an agreement should be capable of review. The normal process would be to go to a tribunal such as the industrial relations tribunal or the Administrative Appeals Tribunal. I have a question of the minister. I can understand your attitude in the transitional period. I think it is difficult. There are many messy aspects and nothing is to everyone’s satisfaction, but the government is of course constructing a new regime. My question to the minister is this: is it the intention of the government to take up the principle that Senator Siewert has outlined in its new regime that industrial instruments, whether they be collective or individual agreements, be capable of review and due process if they are subject to a decision by an authority other than the parties to the agreement? Of course, in law, if no third party is involved and there is a dispute, the parties to the agreement can take it to the courts. But in these cases a third party is involved in deciding whether or not an agreement stands, and that agreement process should, under the normal principles of natural justice, be capable of review. So, Minister, are you going to deal with it in your substantive bill?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Can I deal with this sequentially. First, Senator Siewert, you raise the issue of fairness, and I appreciate the position you are putting. The point I also make is that there are two other aspects of fairness I would ask you to consider. One is the framework—that is, the test against which an agreement is assessed. Obviously there is a no disadvantage test that is much more substantive and real here. Second, I also make the point that, potentially, delay can be an issue of fairness as well, and the government is cognisant of that. Senator Murray raises the point that I was going to respond to in relation to this. I can indicate that we will consider this issue in the context of the substantive bill. I can put it no higher than that, but certainly there are some arguments that have been raised that the government will take into account when considering our substantive bill.

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

I thank the minister for her answer. One of the issues that I did just touch on, and I would like to go back to, is the issue around consistency and how it is envisaged that consistency of application of the NDT is ensured.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am advised that the Workplace Authority will have a policy guide which will set out how this test should be approached, and that will be publicly available. I make the point that, in any situation where you have a statutory test, you have to try to ensure administrative arrangements are in place to ensure consistency insofar as humanly possible.

Question negatived.

by leave—I move government amendments (12) and (13) on sheet PA412:

(12)  Schedule 1, item 2, page 15 (lines 31 to 34), omit subsection 346N(2), substitute:

        (2)    For the purposes of subsection (1), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.

(13)  Schedule 1, item 2, page 20 (lines 27 to 30), omit subsection 346W(5), substitute:

        (5)    For the purposes of paragraph (2)(a), Division 8 does not apply to the variation of an agreement, except for sections 367, 368, 368A, 372, 373 and 374, paragraph 377(1)(b) and section 380A.

These amendments ensure that all relevant provisions apply in relation to variations made when workplace agreements fail the no disadvantage test. Under the bill as is currently drafted, for the purpose of varying agreements that initially fail the no disadvantage test, the usual procedural requirements in division 8 of the act do not apply. The only requirements are those set out in subsection 373(1) and section 374.

Other provisions are also required, including those that the bill introduces to ensure that agreement variations are properly approved. The new provisions to be inserted in section 346N(2) and section 346W(5) would, first, apply sections 367 and 368 of the act, which set out who may make a variation and when a variation is made; second, apply proposed new section 368A of the bill to ensure that only genuinely approved variations are capable of operating; and, third, apply section 372 of the act, which requires an employer to seek approval for variation of a union collective or greenfields agreement within a reasonable time. In addition, these amendments substitute the reference to section 373(1) with a reference to section 373 of the act, so that the approval of variations of ITEAs and collective agreements apply, apply proposed new section 377(1)(b) so copies of signed variations would have to be lodged and apply proposed new section 380A to ensure that, where an unapproved variation is lodged, civil remedy provisions apply.

Question agreed to.

I move amendment (14) on sheet PA412:

(14)  Schedule 1, item 2, page 30 (line 23), after “section 346M,”, insert “346Q,”.

This is a minor technical amendment. The amendment would insert a reference to section 346Q in subsection 346ZH(1). As I said, it is a minor technical amendment and would ensure that an employer who has received a notice under 346Q is required to give a copy of the notice to its existing employees, consistent with similar provisions elsewhere in the bill. As the chamber would be aware, 346Q provides that the Workplace Authority director is required to notify an employer about the outcome of the application of the no disadvantage test in relation to variations of collective agreements that commence operational approval. Proposed section 346ZH requires an employer who has received a notification from the Workplace Authority in relation to a collective agreement to take reasonable steps to ensure that the employees are given a copy of the notice as soon as is practicable.

Question agreed to.

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

by leave—I move amendments (13) and (14) on sheet 5449 together:

(13)  Schedule 1, item 2, page 31 (line 1), after paragraph 346ZJ(1)(b), add:

         or (c)    fail to employ an employee; or

             (d)    treat an employee any less favourably;

(14)  Schedule 1, item 2, page 31 (lines 2 and 3), omit “the sole or dominant reason for the employer dismissing, or threatening to dismiss,”, substitute “one of the reasons for the employer dismissing, threatening to dismiss, failing to employ or treating less favourably,”.

These amendments relate to dismissal and unfair treatment as it relates to whether agreements fail the NDT. Again, this issue was brought up during the hearings, particularly by Professor Stewart and in the ACTU submission. This is another issue that was raised during the last debate over the fairness test. Basically, the provisions in the bill replicate what was in the fairness test and the fairness test provisions. New section 346ZJ attempts to provide protection for employees from dismissal in circumstances where the agreement fails the NDT. There are a couple of issues with the provision. As I said, these are not new issues; they were identified last time we had this debate.

One of the issues is that limiting the protection against dismissal leaves employees open to other forms of adverse treatment, such as demotion and receiving fewer shifts, for example. So dismissal is not the only thing that an employer might do in a potentially discriminatory manner. We believe employees should be protected from this behaviour as part of this bill. The second issue is that there is only protection when the NDT is the sole or determining reason for the dismissal. We believe a stronger protection would be if failure of the NDT is one of the reasons for the adverse consequences or dismissal. So the crux of the matter here is dealing with adverse consequences beyond just dismissal. The other issue we are seeking to deal with is to ensure that failure of the test is only one of the reasons for the adverse consequences. This issue is not new; it was brought up before. I do not see why the government did not pick this up when it drafted the bill, because it seems to me it is blatantly unfair and is, in fact, inconsistent with the government’s approach to fairness to employees.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The government’s view is that the protection in this section is focused on protection against dismissal. We note that prejudicial variation to working conditions could prima facie breach freedom of association protections and there are significant penalties for such breaches in those circumstances. We do not support this amendment. In respect of amendment (14), we believe the position the government has put in relation to the bill reflects an appropriate balance. I again indicate that these were provisions discussed with both employer and employee parties to the NWRCC—the National Workplace Relations Consultative Council—and the Committee on Industrial Legislation.

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

I appreciate that many of the answers I will be receiving today are that these issues were discussed by the reference group. Be that as it may; they were still substantive issues that were brought up during the committee inquiry. I believe that these amendments are a much simpler and easier way of dealing with these issues rather than leaving it up to the other mechanisms that the minister outlined.

As I articulated earlier, we believe this makes this bill fairer and it goes beyond just the dismissal issue. It acknowledges that there are other things that can happen to employees beyond dismissal that are adverse to not only their working conditions but also their work. For example, if they are receiving fewer shifts then it is a similar form of dismissal—if they are doing less shift work and, therefore, less work. I do not understand why the government does not seek to close these loopholes seeing as this issue has been raised a number of times in relation to either the fairness test or the no disadvantage test.

Question negatived.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Can I indicate to the chamber that government amendment (15) on sheet PA412 is a technical amendment in relation to outworkers. I am advised that there are further substantive amendments with regard to outworkers which have already been circulated in the chamber. We will deal with the amendments in the order that they appear on the running sheet.

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

I seek clarification: it would seem to me that if one amendment takes away conditions and others are going to restore them or improve them, then we would be better off dealing with all of the outworker amendments together. We do not have to stick to the running sheet, if it is all right for the minister not to do so. I would rather have the package of outworker amendments dealt with in one package. If other members of the Senate like that approach, I suggest we do that.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

If the chamber would prefer, we do not have an objection to dealing with item (15) together with items (32) and (35) on sheet PA412, which are listed on page 4 of the running sheet. If that is the chamber’s preference then it is the government’s preference to postpone amendment (15) to when we get to items (32) and (35).

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

I move Australian Green amendment (15) on sheet 5449:

(15)  Schedule 1, page 34 (after line 9), after item 7, insert:

7A  At the end of section 352

Add:

AWAs and ITEAs to expire on nominal expiry date

        (3)    Notwithstanding any other provision of this Act, a pre-reform AWA, an AWA or an ITEA expires on its nominal expiry date and ceases to have effect on that date.

As we have already touched on in the chamber during an earlier debate, this bill does not end AWAs. It brings in ITEAs, but AWAs continue until their nominal expiry date and then they only terminate if one of the two parties gives the 90-day notice that they want the agreement to expire. We believe the more appropriate approach would be for the AWAs to expire on the nominal expiry date. There are two ways forward from there: either they can then go on to an ITEA or they can go on to any other subsequent collective agreement. We want to see an end to AWAs and ITEAs, and the amendment proposes that AWAs and ITEAs cease to operate on their nominal expiry dates. We believe that does genuinely get rid of AWAs and it would encourage employers and employees to reach new agreements before the end of the nominal expire dates. It is in that way that we can ensure that AWAs are finished and that gives extra encouragement to employers to reach agreements before the end of the expiry date. We believe this is very important. We believe this is a much better approach and sends a much stronger signal about the government’s intent to genuinely get rid of AWAs.

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

I support this amendment for entirely different reasons to those put forward by Senator Siewert. As readers of the inquiry report would know, my recommendation 2 said:

That Labor design an individual statutory employment agreement system as an alternative to individual common-law contracts, that has the following characteristics:

• the statutory provisions are fair;
• fairness provisions are oversighted and enforced by an active regulator;
• the individual statutory agreements are underpinned by a credible safety net of wages and conditions;
• individual statutory agreements are subject to a global no-disadvantage test referenced back to the applicable award; and
• fast low-cost disputation processes are available.

That being so I wanted to see a continuation of the individual statutory agreement stream, albeit much fairer than the one we have had in the past. So I was particularly pleased with government amendment (1) and I said before question time, rather selfishly, I think, from the perspective of Western Australia, that it is an excellent amendment. I know it is one much desired by employers and employees in my state. I think Senator Siewert has a point because now we have the protection of that amendment (1), which means an ITEA can be made with a previous employee provided the former employee’s employment was not brought to an end in order to re-engage the former employee on the ITEA. So if it expires at the nominal date and the employee genuinely wants to strike an agreement for an ITEA with the employer, I think that is a good thing. It reinforces the proper negotiation and agreements and allows the conditions of employment to be updated. I am sure my motivation is different from yours but I do like the symmetry of what you have done. I think it is better legally, better ethically and better from the point of view of modernising and updating employment arrangements between individuals and their employers. Of course, it would not be as attractive without government amendment (1), which again I compliment the government on for introducing. So we certainly support this amendment.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Siewert, I think you are already aware—let me put my glasses on so I can see whether you are nodding—that in my answers to general questions I did indicate the government’s position on this. I appreciate your views in relation to this but we have taken the view that, in developing the policy implementation plan under Forward with Fairness, we had to provide certainty for employers and employees in their terms and conditions without preventing them from agreeing to terminate the agreements if they desired. I read out, I think, in response to earlier questions, the aspect of our policy implementation plan which dealt with this issue. Therefore it comes as no surprise, I am sure, that the government is not supporting this amendment.

Question negatived.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

Before we move to government amendment (16), I will clarify the situation with regard to the running sheet. Government amendment (15) has been postponed until later and will be dealt with jointly with government amendments (32) and (35)—in another 15 minutes or so.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government amendment (16) on sheet PA412:

(16)  Schedule 1, item 15, page 39 (line 10), omit paragraph 2(2)(b).

This amendment deals with the operation of AWAs. The amendment removes subclause 2(2)(b) from proposed schedule 7A. This means that an AWA made prior to commencement and lodged within the 14-day time frame from commencement would be able to replace an earlier AWA consistent with the current rules. This amendment would omit subclause 2(2)(b) from proposed schedule 7A. Subclause 2(2)(b) of schedule 7A will currently have the effect that paragraph 347(4)(b) of the pre-transition act would not apply to an AWA. Under the bill an AWA made before commencement can be lodged with the Workplace Authority director up to 14 days after commencement. After commencement no new AWAs could be made and after four days no new AWAs could be lodged.

Question agreed to.

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

I move Greens amendment (16) on sheet 5449:

(16)  Schedule 1, item 15, page 39 (after line 28), after clause 2, insert:

2A  Application of no-disadvantage test to AWAs

        (1)    An employee employed under an AWA or the bargaining agent of an employee employed under an AWA may apply to the Workplace Authority Director for a review of the employee’s AWA to determine whether it passes the no-disadvantage test in Division 5A.

        (2)    If the Workplace Authority Director determines that the AWA fails the no-disadvantage test, the employee may terminate the AWA by lodging with the Workplace Authority Director a declaration of termination which meets the requirements set out in subsection 395(3).

        (3)    The employee must take reasonable steps to ensure that written notice of the termination is given to the employer in relation to the AWA.

        (4)    An employer must not:

             (a)    dismiss an employee; or

             (b)    threaten to dismiss an employee; or

             (c)    treat an employee any less favourably;

if one of the reasons for the employer dismissing, threatening to dismiss or treating less favourably, the employee is that the employee sought a review of his or her AWA or that the employee terminated his or her AWA.

        (5)    Subsection (4) is a civil remedy provision.

Note 1:  A contravention of subsection (4) is enforceable by a workplace inspector—see Division 11 for provisions on enforcement.

Note 2:  Division 3 of Part 14 contains other provisions relevant to civil remedies.

This amendment is about AWAs being able to be terminated prior to the expiry date of the NDT. This amendment we believe goes to the heart of fairness and what is wrong with the AWA system and Work Choices. We had very clear evidence to the Senate committee that demonstrated that employees had been forced onto unfair AWAs. In fact, that had happened since the election. The Qantas Valet Parking example was provided to the committee. There was some fairly distressing evidence. We had one of the workers who had been offered an AWA since the election of the government—a government that came into government with a clear policy on these issues. We are also deeply concerned that many people will continue to stay on AWAs until at least their nominal expiry date. We do not support in principle retrospective application of new laws, and we understand that to merely cancel all AWAs now would create many difficulties. However, we do remain convinced that the Work Choices system was unfair. We know that the government believes that the Work Choices system was unfair and we believe very strongly that there are a number of AWAs out there that are unfair.

We believe that this mechanism allows employees to choose to get off unfair AWAs where they do not meet the no disadvantage test. We believe the opportunity should be open to employees to test whether their AWAs are unfair and to get them out of what are unfair work situations. It would also deal with issues where people had been forced, within the few short months between the election and now, onto AWAs which would not meet the no disadvantage test once this bill is passed. We strongly believe that this amendment goes to the heart of the unfairness of the past system. We are trying to reduce the unfairness that workers have been suffering due to the Work Choices system and regime.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I again indicate what we said prior to the election. Obviously the government did have to consider in opposition, when putting forward our policy commitments and our implementation plan, the need to deal with transition arrangements and the need for some certainty in the workplace as we moved to a new system. The government’s policy as set out prior to the election is that AWAs made prior to the implementation date of this bill, Labor’s transition bill, will remain in force and may only be terminated in accordance with current rules. These rules allow termination by agreement between the parties during the term of the AWA or termination by one party when providing 90-days notice to the other after the nominal expiry date. Under our policy, if an AWA is terminated in such circumstances, then the employee will revert to an existing collective agreement in the workplace or, where there is no collective agreement, will revert to the award, and obviously the Fair Pay and Conditions Standard will also continue to apply.

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

What does the government intend to do? Let me be clear: this amendment gives employees the ability to test their AWA against the no disadvantage test. What does the government intend to do in circumstances where there is clear evidence of people being forced onto AWAs in that period between the election and when this bill comes into effect? I do not know how many people there are out there in this situation but I know there are some. I am sure the government has been presented with stories and other senators in this place have heard similar stories. Does the government intend to address that inherent unfairness? It is even more unfair when people have been forced onto these instruments since the election. This is not just about those employees but is a way of picking up those employees without making the act specifically retrospective.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

First, in relation to people being forced onto any agreement, obviously as I have indicated there are remedies for duress under the legislation. Second—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Abetz makes a point which I am sure he can make if he wants to get up. Second—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Perhaps you would like to speak, Senator Abetz, if you want to keep talking.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I will make a contribution because I would have thought the minister would have found it within herself to say that under the existing legislation, prior to the amendments that we are discussing today, it is illegal to force anybody onto an AWA, and the remedies that the minister is referring to are in fact remedies that already exist in the legislation, prior to this raft of amendments.

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

That is correct. If I may add to the debate: the great weakness of the regime pre Work Choices was the lack of a regulator to ensure that duress was properly policed. That was the greatest problem. One of the very significant advances made by Work Choices and reinforced by Labor policy is the decision to have a much stronger regulatory regime for workplace relations nationally. If any good has come out of all those events, it is an understanding that, without strong regulations and a strong regulator who can enforce the law, you actually cannot ensure fairness, particularly when it is a question of an individual employer and an individual employee with no other witness at their negotiation. So I would confirm the law on duress was there and was improved subsequently with the provision of a decent regulator. Through the chair: Minister, I hope that, under your substantive bill and in your policy to come, your regulator will be even stronger and even more capable of ensuring as much fairness and fair play in industrial relations as possible.

Question negatived.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government amendment (17) on sheet PA412:

(17)  Schedule 1, item 15, page 40 (after line 3), after subclause 3(1), insert:

     (1A)    However, paragraph 405(1)(e) of the pre-transition Act continues to apply in relation to a person whose appointment has ceased to have effect under subclause (1), as if the person continues to be a bargaining agent.

This amendment would ensure that a bargaining agent appointed in relation to an AWA would continue to have standing to apply for civil remedies in relation to AWAs under the act on behalf of an employee.

Question agreed to.

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

I move Australian Greens amendment (17) on sheet 5449:

(17)  Schedule 1, item 15, page 40 (line 34) to page 41 (line 6), omit subclause 5(3).

This relates to no variation of AWAs. This bill provides in general for no variation of AWAs, and we support this. However, the bill does provide for AWAs to be varied if they fail the fairness test, if they contain provisions which are discriminatory or if they contain prohibited content. We believe that, for the protection of employees, AWAs that fail the fairness test should not be able to be amended to pass it. This bill introduces a new test for agreements—as we all know, that is the no disadvantage test—and we should ensure that as many agreements as possible are required to pass the new test. There is a significant difference between the fairness test and the NDT, which the minister has pointed out to the chamber, and if an AWA fails the fairness test we think it should be void and the employer required to enter into a new agreement. The bill provides for ITEAs, which are subject to the NDT.

I remind the chamber—but I think the minister pointed this out, and earlier in question time so did Senator Fisher—that there are a lot of agreements currently being processed, around 150,000. That is, there are 150,000 agreements currently being processed that could potentially be unfair. Going on the average statistics for agreements currently failing the test, I would say a good portion of those would fail the test. We believe that if an AWA fails the fairness test, which is not as effective as the NDT, it should not then be allowed to be varied and should in fact have to go through the whole new process that comes into effect with this bill.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I suspect, Senator Siewert—through you, Mr Temporary Chairman—this is another manifestation of a fundamental disagreement about how we manage the transition process and our view that some certainty needs to attach to agreements, notwithstanding that we disagreed with those laws when they were passed. The government clearly have to deal with the reality that there are people who made agreements and therefore we have to have a transition process. A lot of the disagreement between us and the crossbenches, particularly the Greens, is due to different views about how to handle that—and I respect that that is a different view. In our view, the bill enables some limited variation of AWAs to deal with specified issues. Having made the decision we have made to allow existing AWAs to continue under the provisions that I previously alluded to, we do need to continue to be able to vary AWAs for specified matters only. I do make the point that the government’s bill does not allow ongoing substantive variations to AWAs. If parties wish to do that, the government’s view is that they can bargain under the transitional legislation and/or do so later on pursuant to the new substantive legislation that the government will put before the chamber.

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

I take your point; I think it is a substantial, fundamental disagreement about what should and should not be included in the transitional bill. But, if previous AWAs are failing the previous government’s fairness test, I do not see why we should guarantee those employers certainty. I think they should be required to start again. I accept that we have a fundamental disagreement, but this is about fairness. We keep talking about fairness, but I do not think it is fair that an employee should have to keep going through that process if the AWA has already failed the fairness test. It should not be allowed to be varied. They should start again.

Question negatived.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (18) and (19) on sheet PA412 together:

(18)  Schedule 1, item 15, page 41 (line 24), omit “the 14 day period referred to in section 342”, substitute “a period of 14 days after the commencement of this Schedule”.

(19)  Schedule 1, item 15, page 41 (lines 33 and 34), omit “the 14 day period referred to in section 375”, substitute “a period of 14 days after the commencement of this Schedule”.

These amendments seek to amend subsections 7(1)(b) and 7(2)(b). These amendments would enable lodgement of an AWA or a variation of an AWA to be made before the commencement of the bill and lodged after 14 days from the day it was made—which would otherwise be in breach of section 342 or section 375—to be accepted by the Workplace Authority in accordance with current rules. These amendments would require the Workplace Authority director to notify the parties, where an AWA or variation made to an AWA has been lodged at the end of 14 days after the commencement of the schedule, rather than 14 days after the AWA or variation was made, if lodgement has not been effective and the AWA or variation is not in operation. The penalty provisions for breach of sections 342 and 375 would continue to apply. In short, the purpose of the amendments is to make clear, in accordance with current arrangements for AWAs, that agreements made before commencement and lodged after the end of the approval period can be accepted, provided they have been lodged by the end of 14 days from commencement of the bill.

Question agreed to.

I move government amendment (20) on sheet PA412:

(20)  Schedule 1, item 15, page 42 (after line 13), after paragraph 8(1)(a), insert:

           (aa)    paragraph 336(b);

This is an amendment to insert a paragraph 8(1)(aa) in schedule 7A. This amendment is intended to ensure that employees on AWAs which have passed their nominal expiry date will be eligible employees for the purposes of pre-lodgement procedures for a new certified agreement. This means that these employees would be entitled to be given ready access to the collective agreement and an information statement in the same way as employees on ITEAs that have passed their nominal expiry date. The government believes that this amendment is necessary to ensure that employees on Australian workplace agreements that have passed their nominal expiry date will be eligible employees for the purpose of pre-lodgement procedures for the making of a collective agreement.

Question agreed to.

I indicate to the chamber that some of these amendments result from the Senate inquiry and some of them result from further consultation that the government has undertaken. As the Senate will observe, the majority of them are highly technical in nature. I move government amendment (21) on sheet PA412:

(21)  Schedule 1, item 15, page 43 (after line 20), after paragraph 2(1)(c), insert:

           (ca)    subsections 347(1) and (2);

This deals with pre-transition collective agreements and seeks to preserve section 347, subsections (1) and (2), to make clear that such agreements commence on lodgement even if the new lodgement requirements are not satisfied consistent with the current rules in relation to those agreements. The amendment is required to ensure that collective agreements made and lodged before the commencement of the bill or made before the commencement of the bill and lodged within 14 days of that commencement would not be subject to the new lodgement requirements proposed to be introduced by the bill and would continue to commence operation on lodgement, consistent with the approach that existing laws apply to that agreement.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I was going to suggest to the minister something to help expedite the process. A lot of these amendments are technical and are supported around the chamber. The explanations for the amendments are in fact in the explanatory memorandum. If the minister were satisfied with just moving the amendment rather than reading out that which is there for all of us to read anyway in the explanatory memorandum, it could save us some time.

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

I do not mind what the shadow minister suggests, although I must say that I rather like the minister’s approach. While we know what is going on, it is useful for those hearing who might not read Hansard. Providing it is short, I quite like the explanation.

It is time for the minister to get a figurative pat on the back. I want to commend you, as I would commend any government, for in fact reacting to the evidence that was put to the inquiry quickly and well and producing technical and some non-technical—in fact, some quite substantive—amendments. The worst thing that can happen to a government is for them not to listen to evidence put forward by credible and reputable witnesses from all sides of the argument. I notice that your amendments include propositions put forward by employer organisations, employee organisations—unions—and by academics. I make these remarks because I want to encourage your government to continue to do this. Governments are not perfect. Governments do not know everything, and nor do their bureaucracies. It is very encouraging when there is a rapid and positive response to good evidence given in committees of review. There you are: you have had your pat on the back for today. I will leave it at that.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I will take any pat on the back, even if it is figurative, Senator Murray. Thank you for that. The point that I want to make—and this goes back to one of the issues that arose in one of the first parts of the discussion in relation to both this bill and the substantive bill—is that we are conscious that these are significant changes. That is why the Deputy Prime Minister has made clear that the government will take a consultative approach, both through the Senate process and also in relation to consultations with employers and employees, on these bills. I hasten to add that the government when in opposition did take a consultative approach to the development of the policy and the implementation plan.

Question agreed to.

I move government amendment (22) on sheet PA412:

(22)  Schedule 1, Part 2, page 44 (after line 15), at the end of the Part, add:

15A  Effect of repeal of section 399

(1)    To avoid doubt, if, immediately before the commencement of this item, an industrial instrument had no effect because of the operation of section 399 of the pre-transition Act, the repeal of that section by this Act:

             (a)    does not cause the instrument to have effect after that commencement; and

             (b)    does not cause any protected award condition to cease to have effect.

(2)    In this item:

industrial instrument means an instrument mentioned in subsection 399(3) of the pre-transition Act, and includes any of the following (except to the extent that they contain protected award conditions):

             (a)    a common rule within the meaning of clause 89 of Schedule 6;

             (b)    a transitional Victorian reference award within the meaning of Part 7 of that Schedule;

             (c)    a transitional award within the meaning of that Schedule, to the extent that subclause 102(1) of that Schedule applies to it.

pre-transition Act means the Workplace Relations Act 1996 as in force immediately before the commencement of this item.

protected award condition has the meaning it had for the purposes of section 354 of the pre-transition Act.

Currently, the act provides that an agreement or award ceases to operate because it is replaced by a new agreement but the award or old agreement can revive when a replacement agreement is terminated. This amendment will ensure that the agreement revives only when terminated after the commencement of the bill. I am happy to expand more on that if required.

Question agreed to.

by leave—I move government amendments (23) and (24) from sheet PA412 together:

(23)  Schedule 1, item 48, page 50 (line 22), omit “section 346W (which deals”, substitute “section 346N or 346W (which deal”.

(24)  Schedule 1, item 67, page 53 (line 33) to page 54 (line 1), omit the item, substitute:

67  Paragraphs 390(2)(b) and 392(2)(ba) and (c)

Omit “AWA”, substitute “ITEA”.

Both of these deal with the correction of a typographical error.

Question agreed to.

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

by leave—I move Democrat amendments (1) and (2) on sheet 5443:

(1)    Schedule 1, page 68 (after line 1), after item 132, insert:

132A  Subsection 643(10)

Repeal the subsection.

(2)    Schedule 1, page 68 (after line 1), after item 132, insert:

132B  Paragraph 645(5)(c)

Repeal the paragraph.

I draw the attention of the participants to sheet 5443. I intend to make my remarks to all three sets of amendments that you see on that sheet in one go. I do not intend to speak at length; I think participants in the debate know what this is about so I will deal with it on that basis. When I am discussing the unfair dismissals issue with people who are not members of parliament, they are always quite astonished when I say, ‘Actually, all parties are in furious agreement on unfair dismissals.’ Every political party does actually support unfair dismissal provisions; the quarrels have been about the threshold at which they apply and the extent to which they apply. The coalition, for instance—taking them as a starting point—began their life in government in 1996 supporting unfair dismissal provisions for all employees but agreed with the Democrats, in our agreement on the 1996 bill, that there would be restrictions placed on probationary, casual and specified-term contract employees applying for unfair dismissal relief. The result of that agreement was that federal unfair dismissal applications fell by 50 per cent. Subsequently, in 1997, the coalition began to ratchet it back, and in the Workplace Relations Amendment Bill 1997 the coalition proposed a permanent exclusion for new employees in businesses of 15 employees or fewer from making an unfair dismissal application. That bill eventually ended up as a double dissolution trigger. The point is that having provisions for unfair dismissals was still a policy for the coalition for businesses with above 15 employees at that time. Fifteen was chosen because it was the number used in industrial instruments. Subsequently, the policy of the coalition was to set it at what was known as the small business level, which was the Australian Bureau of Statistics level of 20 employees or more, and then they raised it even higher with Work Choices to 100 employees or more.

The Greens have always held to the view that unfair dismissal provisions should apply to all employees. Labor did hold that view but have now moved to the view of the coalition in 1997, which is that it should apply to organisations with 15 or more employees. The Democrats continue to believe that all employees should have access—provided, of course, that the surrounding environment discourages vexatious claims and that restrictions are placed on probationary, casual and specified-term contract employees.

Knowing that the coalition are still attached to the view that unfair dismissal provisions should not apply to small business, and knowing that the Labor policy is for unfair dismissal provisions to apply to organisations with 15 employees or more, I thought I would bring the issue on—just to be helpful. I have proposed what I would describe broadly as Green and Democrats policy: that unfair dismissal provisions under the Workplace Relations Act apply to all employees—items (1) and (2) on sheet 5443. Then, if that goes down—which, I must say, in my pessimistic way I have anticipated it will—I offer up Labor policy; and, if that goes down, I then offer up what was the previous coalition policy, which is for it to apply to organisations with 20 or more employees.

What I expect is that, when the substantive bill that Labor talked about is introduced later this year, they will bring forward their policy of unfair dismissal provisions applying to organisations with 15 or more employees, and they will have to get the numbers from the Greens senators and the votes of Senators Fielding and Xenophon to agree with that. I suspect they will get that approval and so it will become law. What I would like is for it to become law now. I do not raise this to be mildly provocative but because the issue of unfair dismissal provisions and it being of assistance in fairness matters was raised by a number of witnesses in the Senate inquiry, independently of my questioning or anybody else’s questioning. I do not propose to say much more unless I am obliged to.

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

Readers of the amendments will know that the Greens have an extraordinarily similar amendment to the universal dismissal amendment that Senator Murray has moved on behalf of the Democrats. We are also moving to get rid of the concept of operational reasons for dismissal.

We will be supporting this amendment; it is extremely similar to our amendment. The declared intent of the government is to deal with the issues of unfair dismissal; we do not agree with them taking it down to 15 employees. I think the Greens have been on the record on many occasions saying we support universal unfair dismissal rights, hence our amendment. We will be supporting the Democrats amendment to take it to 15 employees and, if that is unsuccessful, then to 20. We realise that it is better than the current situation, although our preferred position is that it applies, as the Democrats amendment says here, ‘regardless of numbers of employees in a business’.

Senator Murray is right: it came up on a number of occasions during the Senate inquiry. It is clearly the government’s policy to deal with and change unfair dismissal laws. We would urge the government to do it now, rather than leave it until the substantive bill.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

These are provocative amendments by Senator Murray. They are provocative to the government. It is a very simple amendment to delete one number and put in another number. If the Labor Party actually believed their vehement rhetoric on this, you would imagine that they would accept the amendments of the Democrats. If the unfair dismissal laws are such a matter of great social injustice, as we were led to believe, one would wonder why the Labor Party would not seek the first opportunity to overturn the unfair dismissal laws that we introduced and indeed were elected upon on a number of occasions with a very firm unfair dismissals policy.

It is interesting to reflect that when we introduced certain changes we were told that Labor would oppose them lock, stock and barrel and would rip them up wholesale. We now know that the lock of the constitutional lock—namely, use of the corporations power—is accepted by Labor and the stock was having a national system, now accepted by Labor. In relation to the barrel, all they are doing is making it into a sawn-off shotgun rather than getting rid of the barrel, because they now accept the principle of an unfair dismissal law. They accept that principle.

As Senator Murray quite rightly points out, at least the Greens are consistent. They oppose it all the way down the line. That is fine—fundamental disagreement there. The only thing that stands between the Australian Labor Party and the alternative government on this is that we are unashamedly pro small business, and that is why we support as high a threshold as possible. We believe 100 is the appropriate figure. If you are anti small business, you would go to the lowest possible threshold whilst paying lip-service to small business and saying, ‘Yes, we do need unfair dismissal laws.’ Therefore, Labor have agreed to set it at 15.

The interesting thing is that, when this section was introduced by the former government, I remember receiving wholesale assaults from those opposite saying that this would lead to mass sackings and it would see unemployment skyrocket. The argument that we consistently put as the government at the time was that employers are called ‘employers’ and not ‘dismissers’ for a very simple reason: they are in the game of employing people, not dismissing people. As soon as we gave employers the confidence that if things did not work out they could dismiss, guess what? The unemployment level in this country, and the social misery caused by the unemployment level, was driven down from above five per cent to below five per cent and now, with the latest figures, to below four per cent—3.97 per cent. So, rather than seeing wholesale sackings, we saw wholesale employment and the removal of the social misery of unemployment from literally thousands of our fellow Australians.

We stand by what we stood for and remain consistent with our view that the unfair dismissal laws, which were a social experiment introduced by Prime Minister Keating, were an abysmal failure. They were a great disincentive to employment. Once they were removed, as we had sought to do, we saw a whole percentage point plus fall in our unemployment rate in this country. That meant the removal of the social misery associated with unemployment for literally tens of thousands of our fellow Australians. We believe that, in relation to unfair dismissals, we did get it right. We will be opposing the amendments, but it will be interesting to see how the government twist and turn on this one. Because of all the extravagant and extreme statements they made in relation to unfair dismissals, you would have thought they would be tripping over themselves to bring in legislation to get rid of it.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I thank Senator Abetz for reminding us and certainly reminding the crossbenches of what the alternative might be just as Senator Siewert was getting grouchy at me. The government made our position on unfair dismissals absolutely clear prior to the election. We do want a new fair and balanced system for the benefit of both employers and employees. We believe the previous government’s 100-employees exemption went way too far. I might be corrected, but I do not recall former Prime Minister Howard nor Senator Abetz prior to the preceding election ever running around telling people that they considered 100 employees to be the appropriate cut-off. My recollection is that that was a late conversion.

The government’s policy is that employees employed in businesses with fewer than 15 employees will have to satisfy a 12-month qualifying period so that the employer can determine whether those employees are appropriate for their business. Unlike with these amendments, such employers will have protection once they satisfy that qualifying period. We consider that to be an appropriate balance for business, particularly small business. As the chamber may be aware, it is the government’s intention to ensure that businesses be protected by a simpler and faster system. The bill before the chamber does not, as I think Senator Murray indicated, substantively deal with the unfair dismissal regime. These are issues that will be addressed in the context of the substantive bill. Senator Murray, I appreciate you moving the amendments at this time, because it may be the case that you will not be here when we debate—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

That’s unkind and unnecessary.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I was actually about to say something nice to him. I was going to say that, whilst I personally and the Labor Party may not have always agreed with Senator Murray, his contributions to this chamber have always been measured and intelligent and it will be very strange to go through the substantive bill without him on the crossbenches.

Question negatived.

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

by leave—I move Democrat amendments (3) and (4) on sheet 5443 together:

(3)    Schedule 1, page 68 (after line 1), after item 132, insert:

132A  Subsection 643(10)

Omit “100 employees”, substitute “15 employees”.

(4)    Schedule 1, page 68 (after line 1), after item 132, insert:

132B  Paragraph 645(5)(c)

Omit “100 employees”, substitute “15 employees”.

In moving these amendments, I will briefly remark that I understand the arguments put by the coalition in support of their policy, but I will indicate my own opinion is that there is absolutely no empirical evidence to indicate that there was a one per cent drop in unemployment because the size of a business to which unfair dismissal provisions applied was raised to 100 employees from zero. In fact, I recall with pride the contribution the Democrats made to the pre-Work Choices area, where I think employment increased by 1½ million or more over the years, and I would never dream of attributing that to the efforts we put in on unfair dismissals or anything else.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

What we had in relation to the climate was a very high rate of unemployment from which Australia had suffered, with over one million of our fellow Australians on the unemployment scrap heap, courtesy of the Hawke-Keating government. We then drove down the unemployment rate to slightly above five per cent, and it hovered there for 20 months unabated. Then all of a sudden some changes were made to legislation, and since then the unemployment rate has consistently decreased. You have got to ask yourself: what was that circuit-breaker about two years ago?

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

China.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I say to you China existed more than two years ago and the boom and other matters were already happening prior to that time. But for 20 months during that boom the unemployment rate hovered between 5.2 per cent and five per cent and could not break that psychological barrier. Indeed, there were many commentators saying, ‘Look, the government should be satisfied with five per cent unemployment,’ and that that really represented full employment. We who saw the social misery of unemployment said: ‘No, that’s not good enough. We will do everything we possibly can within reason to drive it down further.’

Whilst I am willing to accept that possibly not every single job can be directly related to the changes, the simple fact is that the vast bulk of those jobs were a result of the change, because nobody can point to anything other than those changes that were made some two years ago as the reason for that dramatic fall to where we are now—technically below four per cent, on 3.97 per cent. I accept it is four per cent. But to have crashed through that psychological barrier of five per cent, and now even through four per cent, is something for which I think there are many tens of thousands of Australians genuinely thankful to the previous government—albeit we accept the verdict of the Australian people, of course, on 24 November. Just as 47 per cent of people wanted us to stay in office, we accept that, in round figures, 53 per cent did not, and that is why we are not standing in the way of these changes. I remind the Senate that we do not stand in the way, unlike the way the Labor Party treated us when we won government on certain policies such as GST, balancing the budgets et cetera.

I note that I did withdraw something prior to question time, at 12.30 today. It is amazing, when you are on radio and you have to withdraw something, how the information flows into your office. I have been advised that somebody in a lumberjack type shirt was in fact spotted outside the doors of Parliament House shortly before they came down. I will not take the matter any further, but it was interesting the person that was identified to me by that information.

Question negatived.

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

by leave—I move Democrat amendments (5) and (6) on sheet 5443 together:

(5)    Schedule 1, page 68 (after line 1), after item 132, insert:

132A  Subsection 643(10)

Omit “100 employees”, substitute “20 employees”.

(6)    Schedule 1, page 68 (after line 1), after item 132, insert:

132B  Paragraph 645(5)(c)

Omit “100 employees”, substitute “20 employees”.

As you know, Mr Temporary Chairman Bartlett, we have lost the amendments that would allow all employees access to unfair dismissal under the Workplace Relations Act. We then had the amendments which would allow access to unfair dismissal provisions for all employees working in organisations with 15 employees or more, which is Labor policy. Those amendments have been lost. These amendments now set the level at which employees would have access to unfair dismissal at the 20 mark, which is the Australian Bureau of Statistics definition of a small business—a small business being below 20 employees and a medium business being above.

Question put.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (25) to (27) on sheet PA412:

(25)  Schedule 1, item 159, page 71 (lines 1 to 3), omit the item, substitute:

159  At the end of subclause 89(1) of Schedule 6

Add:

   ; and (c)    section 349 of the pre-transition Act as it applies because of clause 2 of Schedule 7A; and

             (d)    section 354 of the pre-transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.

(26)  Schedule 1, item 165, page 71 (lines 19 to 21), omit the item, substitute:

165  At the end of subclause 95(1) of Schedule 6

Add:

   ; and (c)    section 349 of the pre-transition Act as it applies because of clause 2 of Schedule 7A; and

             (d)    section 354 of the pre-transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.

(27)  Schedule 1, item 171, page 72 (lines 9 to 11), omit the item, substitute:

171  At the end of subclause 102(1) of Schedule 6

Add:

   ; and (c)    section 349 of the pre-transition Act as it applies because of clause 2 of Schedule 7A; and

             (d)    section 354 of the pre-transition Act as it applies because of clause 2 of Schedule 7A and clause 2 of Schedule 7B.

I indicate that these are simply technical corrections.

Question agreed to.

I move government amendment (28) on sheet PA412:

(28)  Schedule 1, page 74 (after line 15), after item 191, insert:

191A  After paragraph 20(a) of Schedule 7

Insert:

           (aa)    section 327;

           (ab)    paragraph 336(b);

           (ac)    paragraph 340(2)(a);

           (ad)    paragraph 367(1)(b);

           (ae)    subparagraph 369(b)(ii);

            (af)    subparagraph 373(2)(a)(ii);

           (ag)    subparagraph 467(1)(a)(iii);

           (ah)    subparagraph 467(1)(b)(ii);

This is intended to enable employees whose pre-reform AWA has passed its nominal expiry date to fully participate in the bargaining process.

Question agreed to.

This amendment provides for a proper fallback safety net if a preserved state agreement is terminated. I move government amendment (29) on sheet PA412:

(29)  Schedule 1, page 76 (after line 21), after item 210, insert:

210A  After subclause 15G(1) of Schedule 8

Insert:

     (1A)    If, after the commencement of this subclause, a preserved individual State agreement ceases to operate in relation to an employee because of subclause (1):

             (a)    any preserved collective State agreement binding the employer; or

             (b)    if there is no such preserved collective State agreement—any notional agreement preserving State awards that would have been taken to come into operation in relation to the employer and employee on the reform commencement but for the preserved individual State agreement;

has effect in relation to the employer and employee.

      (1B)    If, after the commencement of this subclause, a preserved collective State agreement ceases to operate in relation to an employee because of subclause (1), any notional agreement preserving State awards that would have been taken to come into operation in relation to the employer and employee on the reform commencement but for the preserved collective State agreement has effect in relation to the employer and employee.

      (1C)    However, subsection (1A) or (1B) ceases to apply if an award or a workplace agreement comes into operation in relation to the employer and employee.

Question agreed to.

by leave—I move government amendments (30) and (31) on sheet PA412:

(30)  Schedule 1, page 78 (after line 23), after item 228, insert:

228A  Subclause 26(1) of Schedule 8

Omit “workplace agreement” (first occurring), substitute “pre-transition workplace agreement”.

228B  Subclause 26(1) of Schedule 8

After “section 355”, insert “of the pre-transition Act”.

228C  At the end of subclause 26(1) of Schedule 8

Add “for the purposes of that Act”.

228D  Subclause 26(2) of Schedule 8

After “subsection 355(6)”, insert “of the pre-transition Act”.

228E  Subclause 26(2) of Schedule 8

Omit “workplace agreement”, substitute “pre-transition workplace agreement”.

(31)  Schedule 1, page 79 (after line 28), after item 237, insert:

237A  Subclause 52A(1) of Schedule 8

Omit “workplace agreement” (first occurring), substitute “pre-transition workplace agreement”.

237B  Subclause 52A(1) of Schedule 8

After “section 355”, insert “of the pre-transition Act”.

237C  At the end of subclause 52A(1) of Schedule 8

Add “for the purposes of that Act”.

237D  Subclause 52A(2) of Schedule 8

After “subsection 355(6)”, insert “of the pre-transition Act”.

237E  Subclause 52A(2) of Schedule 8

Omit “workplace agreement”, substitute “pre-transition workplace agreement”.

These amendments provide for the same rules for incorporating terms from state instruments in pretransition workplace agreements as have been provided for federal agreements, to preserve the operation of section 355 for pretransition instruments, despite its repeal.

Question agreed to.

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

I move Greens amendment (1) on sheet 5451:

Schedule 2, item 9, page 90 (after line 17), after paragraph 576A(2)(b), insert:

           (ba)    must ensure award coverage to all employees, except those employees who, because of the seniority of their role, have traditionally not been covered by an award; and

I did not ask about this when we were addressing some general questions, because I thought it would be more appropriate to talk about it when we were debating the awards section of the bill. Also, I was keen for us to get going on the amendments, as we had had a rather long general discussion. I do not intend to draw out the debate too long; I would just like some specific answers to questions before we start. At this stage I am specifically interested in clause 576L. I am just trying to clear up exactly what it means. It says:

A modern award may include terms about the matters referred to in subsection 576J(1) or (2) or section 576K only to the extent that the terms provide a fair minimum safety net.

I would like to know who decides that, and how we should be interpreting that statement.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I do not know to what extent I can assist you, Senator Siewert. The clause is, I suppose, purposive, in a sense, in that it sets the basis on which those matters may be included—that is, to the extent that the terms provide a fair minimum safety net.

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

Could you clarify who determines that?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Those matters would be determined by the Australian Industrial Relations Commission in the context of the statutory provisions applicable to the task they have been asked to undertake.

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

Thank you for clarifying that. I wanted to make sure that that was on the record.

Some of my questions are about clarification. I would also like to know in what circumstances modern awards need a duration. I think this is in clause 576M(2)(f). If they are under the safety net and subject to an award modernisation request, why do they need a duration?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Clause 576M, I am advised, is a provision dealing with machinery terms. The intention is that an award would continue by operation of law, as has been the case, from my recollection, under previous iterations of this legislation. Awards might have a duration provision in them but they continue by operation of law.

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

Thank you for that. I understand that they are subject to the safety net and subject to the modernisation but the nature of awards is changing. Where awards were previously used for resolutions of disputes they needed a duration but they do not need that any more because the nature of them is changing. I wonder whether that is a carry-on from the old act or whether there is another specific purpose that I do not understand.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am advised that the provision to which you refer is to enable the use of a particular constitutional power, if required.

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

I would like then to ask another question, and I will try to make this as quick as possible. Concerning parties to awards, will parties to awards continue as parties to modern awards? If that is the intention, that is not in the award modernisation request, as I understand it. Obviously this issue is quite important to a number of stakeholders in relation to awards.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

These may be matters which are dealt with in the context of the substantive bill. I am not able to give you a definitive answer on that issue at this point in time. They may be issues we can clarify at a slightly later date—perhaps after the dinner break, if we are still proceeding. If not, I will advise you.

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

Obviously, it is quite an important issue for many of the stakeholders and I would appreciate it if you could inform the chamber as to who will be parties to the awards. I think that it is pretty important in the discussion of this bill, because it is about award modernisation and it is a key part of that. This too may need some further clarification during the dinner break, but I would also like to ask how awards get varied. Section 576H allows for variation but it is only through the award modernisation process. Can parties make applications for variations?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Again, Senator Siewert, these are issues which would be intended to be considered in the context of the development of the substantive bill. I would assume, unless I am otherwise advised, they would be the subject of consultation with relevant stakeholders.

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

As I understand it, you are saying that some of the questions I am asking will be articulated more clearly and dealt with in the substantive bill. The fact is, this act deals with this issue so I would have thought that this act would also deal with how—

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

It starts the process.

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

Yes, it starts the process. I would have thought that where this allows for it the government would have thought through the issue of which parties can actually make applications for variations. It goes to the heart of what all stakeholders want to know about the future of the awards process.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I will make a couple of points. First, what we have in the EM is the award modernisation request. You would be aware, as you have been interested in these issues for some time, and certainly Senator Murray has, that we would envisage that this award modernisation process would take—

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Senator Abetz interjecting—

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am actually talking to the cross benches at the moment—I talk to Senator Marshall regularly, Senator Abetz. This is commencing the award modernisation process. I appreciate where you are coming from but you are asking me to tell you what substantive rights apply to instruments which do not yet exist in terms of variation rights. I have indicated to you that my understanding is that these are issues which will be considered and addressed in the context of the development of the substantive bill. If I have any further information, we will come back to you.

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

Thank you. I do appreciate that if you have further information you will come back to us. We could stand here going backwards and forwards arguing for hours about what is appropriate to put in this bill and what is not as you start the process, but I will not indulge in that. I will go on to my first amendment which is on sheet 5451. This relates to awards coverage. These awards have fundamentally changed under Work Choices and this bill. There are no longer any opportunities for parties to create new awards. Therefore, there is no ability, except through the modernisation process, for award coverage to be extended.

Evidence before the Senate committee, as I understand it, indicated that 10 per cent of employees currently have no award coverage. Given the historical award coverage is industry and occupations based, we can assume that in the future new industries and occupations may come into existence and may not be covered by an award. We do not see why these employees should be without part of the safety net. We do not believe that it is sufficient for the award modernisation request to leave it to the discretion of the AIRC as to whether or not award coverage is extended to all employees. The changed nature of awards and their role in the safety net means that it is an imperative that award coverage is as complete as possible, and this amendment is how we seek to do that. We seek to extend award coverage to employees that may not be covered. That is what this amendment is about. I will also take this opportunity to ask—and I am anticipating that the government ain’t going to like this—whether it is something that is being considered for the substantive bill.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

You anticipated my response in terms of your reference to the award modernisation request. I would make the point that the extension of awards to new classes of employees has, under various iterations of federal industrial law and state industrial law, traditionally been something that the industrial tribunals have done. It is not a new concept.

We have made it clear in section 2(a) of the award modernisation request that the commission is not precluded from extending coverage to new industries or occupations where work performed by those employees is similar to that conducted by employees who are traditionally covered by awards. The government’s position sufficiently addresses the issue you have raised with your amendment.

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

I doubt the minister, and maybe not even the department, would have had the opportunity to consider this. What is being raised here is an issue of very broad concern. Minister, I ask you, through the chair, to take a professional and quite deep interest in the matter as you progress towards the resolution of the substantive bill. I appreciate that it is not your portfolio, but I also appreciate that consultation is going to occur not just between the Labor government and outside parties but also internally. The issue is that apparently—and it is very difficult to get the statistics—anywhere up to 800,000 Australians may not be covered or underpinned by the safety net of an award. The issue is whether the National Employment Standards will substitute and therefore cover them or whether something needs to be done whereby a default provision exists for a common-rule award, which applies to everybody who is not otherwise covered.

I think the evidence is that this is an issue of concern. It is a material issue. I am not at all sure it can be dealt with in the shorthand version of Senator Siewert’s amendment, which is why I do not support it. I think it is a far deeper issue which needs much broader attention, although I think Senator Siewert is dead right to be raising this as an issue. At the heart of modern industrial policy—whether it is the coalition, the crossbenchers or the Labor Party—is the belief that you have got to have a comprehensive safety net, which means that every employee has to be covered by either an award, an industrial instrument or the National Employment Standards. It is a problem that has been identified in evidence. It is an uncertain problem; the statistics are rubbery. It does seem that substantial numbers of employees are not covered appropriately, and they should be.

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

Beyond the issue of us saying this should apply to all employees is that we think it should be an object of this part, which is where the amendment goes to, and it should not be up to the discretion of the AIRC. As an Australian community, we should be extending awards and ensuring they cover all employees. We are saying that it is a fundamental tenet that should be included in the act and not left up to the discretion of the AIRC, which is how the government’s bill stands at the moment. The point here is that it should apply to everybody and it should not be a discretionary issue.

Question negatived.

I seek leave to move Australian Greens amendments (2), (4) and (5) on sheet 5451 together.

Leave not granted.

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

I would like to suggest to Senator Siewert that items (2) and (5)—which, in my mind, have a different content from (4)—be put together and that (4) be separately put.

The Temporary Chairman:

There being no objection to this arrangement, it is so ordered.

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

by leave—I move Australian Greens amendments (2) and (5) on sheet 5451:

(2)

Schedule 2, item 9, page 90 (line 26), at the end of subsection 576A(2), add:       ; and (f)          must ensure equal pay for work of equal value.

(5)

Schedule 2, item 9, page 91 (after line 24), after paragraph 576B(2)(h), insert:

(ha)

the need for rates of pay and classifications to provide equal pay for work of equal value;

I take your point, Senator Murray. These issues relate to pay equity, which came up extensively as an issue during the inquiry. One point that became clear was that gender pay equity had significantly decreased under the AWA process. It should be noted that this occurred in Western Australia under the Court era of IR reform. Research has been presented that showed there was a clear impact on pay equity then, and it has gotten worse in Western Australia under the Work Choices regime. In fact, my home state of Western Australia has the dubious record of being one of the worst states in Australia, if not the worst state, for pay equity and the different rates of pay for men and women. We all know that the average pay rates for women in Australia are well below the average pay rates for men. Research conducted in Australia over the last 10 years points to awards playing an important role in addressing gender pay inequity. For example, most states now have pay equity principles, which allow awards to be varied to ensure equal pay for work of equal value.

I outlined in our speech in the second reading debate that we would be addressing this issue through amendments. We are concerned that the award modernisation process will merely consolidate these pay inequities as they exist in awards, without the Industrial Relations Commission being required to consider pay equity when modernising awards. At the very least, we would urge the government to include an effective pay equity mechanism in the substantive bill. I am already pre-empting that that may be an issue. One of the government’s responses is that this should be dealt with in the substantive bill. I would specifically like to ask questions around this issue and how it is envisaged that the award modernisation process will consider pay equity issues in the awards. If the government does not think this is appropriate, why not? How does it intend to deal with this issue if it is not dealt with through this process?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I can indicate that the government considers that the award modernisation request which is included in the explanatory memorandum does address this concern, and I would refer the chamber to item 3(E), which includes promotion of the principle of equal remuneration for work of equal value. I also point out that section 576B, which sets out the commission’s award modernisation function, contains at subparagraph (2)(e) the same iteration—the promotion of the principle of equal remuneration for work of equal value.

I also understand that section 104 of the principal act requires the commission to take into account the need to apply the principle of equal pay for work of equal value in performing its functions, and that section will continue to apply to the commission in undertaking award modernisation. The government does share concerns about the erosion of women’s pay and conditions and an apparent increase in the gender pay gap under the previous government’s Work Choices laws. We are working to redress this in a number of ways including: the abolition of AWAs, establishing a stronger no disadvantage test, establishing a new safety net including 10 National Employment Standards and through the award modernisation process.

In addition, changes to the equal remuneration provisions in the act are currently being considered in the context of the government’s substantive workplace relations legislation to be introduced into parliament this year. The award modernisation request, as I have outlined already, ensures the commission must promote the principle of equal remuneration for work of equal value, and this is a stronger requirement in the government’s view than ensuring equal pay for work of equal value.

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

The minister touched on an important point there—that is, we do not consider the current pay equity provisions in the act efficient. The fact is that they are not dealing with this issue because the gender pay gap is actually getting worse. Does the government consider that the current provisions in the award modernisation request will satisfactorily start addressing the current inequity? It is all very well to provide a provision to ensure equal pay for equal work, but that is obviously going to require a series of steps to address the actual current inequity. Is it envisaged that that process will be able to be undertaken through the current instructions under the award minimisation request?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I think I have put on record the government’s position in relation to this issue. I have gone through the sections of both the award modernisation request and the bill that we believe deal with this issue. Of course this government want to ensure that there is a reduction in the gender pay gap. We recognise that the previous government’s laws have not been good for many working women in terms of their paid work and we believe that the provisions to which I have referred deal with that. I have also flagged to you that further consideration of this issue will occur in the context of the substantive legislation.

Question negatived.

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

I move Greens amendment (4) on sheet 5451:

(4)

Schedule 2, item 9, page 91 (after line 6), after paragraph 576B(2)(a), insert:

(aa)

the need to ensure all employees are covered by modern awards, except those employees who, because of the seniority of their role, have traditionally not been covered by an award;

Although I am moving this separately to the pay equity amendment, we were specifically aiming this as another means of addressing the issues around pay equity.

Question negatived.

I move Greens amendment (3) on sheet 5451:

(3)

Schedule 2, item 9, page 90 (line 26), at the end of subsection 576A(2), add:       ; and (g)         must be regularly reviewed to ensure that they remain relevant to the rapidly changing structures of work and the labour market.

This is about the regular review of awards. We very strongly believe that awards must be living documents that can adapt to changes in community standards. Awards have been the main vehicle for establishing community standards in workplace conditions such as annual leave, carers leave, parental leave, restrictions on working hours et cetera. We have not reached an end point in the evolution of workplace standards. I do not believe we can imagine that we ever actually will. They will continue to be living documents. Workplaces and labour markets will continue to change and we must have a process for award safety nets to respond. This is another issue that was brought up at the committee inquiry hearings. There was a good deal of comment around this. I would like to ask: is the government considering a regular review of awards and how will the government ensure that their award system remains relevant to changing conditions?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The government policy commitment is to a significant process of award modernisation over a two-year period to the end of 2009 to ensure modern, simple awards which are relevant to the industries and occupations they cover. We have also committed that awards would then be reviewed every four years to ensure they remain relevant. We do not believe the amendment really deals with the objects of award modernisation; rather, it intends to deal with—and in fact this is what Senator Siewert’s comments were directed towards—the maintenance of the awards system. That is a matter, including in terms of the commitment I have indicated, that will be dealt with in the substantive workplace relations legislation.

Question negatived.

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

I move Greens amendment (6) on sheet 5451:

(6)

Schedule 2, item 9, page 96 (line 8), at the end of subsection 576J(1), add:       ; (k) exceptional matters where the circumstances of the industry or sector warrant such matters being included in the award.

This specifically relates to exceptional matters. We believe the matters that are listed to be considered in modern awards are too limiting. The ACTU gave examples in the committee inquiry of important industry-specific conditions that will be lost in the award modernisation process unless the AIRC is given discretion to include such matters where it is appropriate. We believe there should be more flexibility in the making of these modern awards and the government should trust the wisdom of the AIRC and their knowledge of awards in industries as well as input from stakeholders, ensuring there is an appropriate and relevant safety net. This is the issue around exceptional matters—whether the circumstances of an industry or sector warrant such matters being included in the award. There was a lot of debate and discussion around flexibility, and in fact I referred to it in my speech on the second reading. This is one area where we believe there needs to be a widening of the scope of the awards to allow for exceptional matters. There was a considerable body of evidence given during the inquiry around the need for exceptional matters to be included in the process of award modernisation.

Question negatived.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

We now move on to Greens amendments (1) and (2) on sheet 5452.

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

Mr Temporary Chairman, I am seeking your guidance. The government’s amendments on outworkers deal with these issues, not as substantively as I would like, but I am aware of the government’s desire and the chamber’s desire that we treat this expeditiously. I am wondering whether we should go straight to the government’s amendments; we have already agreed we would do (15), (32) and (35) together, and it would then shorten the need for this debate.

The Temporary Chairman:

By way of the special powers I have sitting in this chair, I am sure I can detect universal desire for expeditiousness. So I call on the minister to move those amendments. I will take you, Senator Siewert, as having postponed those amendments.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

by leave—I move government amendments (15), (32) and (35) on sheet PA412 together:

(15)  Schedule 1, page 33 (after line 8), after item 4, insert:

4A  Section 349

Before “An award”, insert “(1)”.

4B  At the end of section 349

Add:

        (2)    Despite subsection (1), if:

             (a)    a person’s employment is subject to a workplace agreement; and

             (b)    but for the workplace agreement, an award would have effect in relation to the person’s employment;

the terms of the award have effect to the extent that they are about outworker conditions, despite any terms of the workplace agreement that provide, in a particular respect, a less favourable outcome for that person.

        (3)    In this section:

outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

outworker conditions means conditions (other than pay) for outworkers, but only to the extent necessary to ensure that their overall conditions of employment are fair and reasonable in comparison with the conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer’s business or commercial premises.

(32)  Schedule 2, item 9, page 96 (lines 23 to 30), omit section 576K, substitute:

576K Terms providing for outworkers

        (1)    In this section:

outworker means:

             (a)    an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer; or

             (b)    an individual who is a party to a contract for services, and who, for the purposes of the contract, performs work:

                   (i)    in the textile, clothing or footwear industry; and

                  (ii)    at private residential premises or at other premises that are not business or commercial premises of the other party to the contract or (if there are 2 or more other parties to the contract) of any of the other parties to the contract.

        (2)    A modern award may include either or both of the following:

             (a)    terms relating to the conditions under which an employer may employ employees who are outworkers (including terms relating to the pay or conditions of the outworkers);

             (b)    terms relating to the conditions under which an eligible entity (within the meaning of Division 4) may arrange for work to be carried out for the entity (either directly or indirectly) by outworkers (including terms relating to the pay or conditions of the outworkers).

                 Note: In paragraph (2)(a), employee and employer have the meanings given by subsections 5(1) and 6(1).

(35)  Schedule 2, page 104 (after line 22), after item 9, insert:

9A  After paragraph 2(2)(s) of Schedule 2

Insert:

           (sa)    subsection 576K(1), definition of outworker;

9B  At the end of subclause 3(2) of Schedule 2

Add:

            ; (j)    subsection 576K(1), definition of outworker.

I will deal with some of the technical issues. I have been asked to indicate clearly on the Hansard the intention behind these amendments. Amendment (15) ensures the continuing operation of award terms about outworking conditions despite any less favourable terms of a workplace agreement. Given the government’s strong and longstanding support for the maintenance of outworker protections, this amendment would continue to ensure that the special terms and conditions of employment for outworkers in awards cannot be reduced in workplace agreements. The former government’s Work Choices laws provided that outworking conditions had effect despite any terms of a workplace agreement that provided a less favourable outcome. Accordingly this amendment was consequential upon the repeal of provisions about protected award conditions. Those provisions are no longer required because under the government’s proposal the full award is the safety net for agreement making.

Amendment (32) inserts a definition of ‘outworker’ to cover employee outworkers and contract outworkers in the clothing, textile and footwear industry so that the award modernisation process does not diminish existing protection for outworkers. The amendment is designed to make clear the government’s intention that modern awards can include provisions relating to both employee and contract outworkers in appropriate cases. This will enable protective clauses like those found in the clothing trades award to be included in modern awards.

Amendment (34) is a minor technical amendment consequential on amendment (32)—in other words, it changes a cross-reference. Similarly, amendment (35) is also a technical amendment consequential on amendment (32), which I have spoken to.

I want to place on the Hansard the government’s intentions in relation to these outworker amendments. The government understands that the clothing trades award contains important provisions in part 9 which are designed to provide specific protections for clothing trades outworkers, whether those outworkers are engaged as employees or contractors. In moving amendments (32) and (35), the government is ensuring that, in the modern, simple award system, these protections can be retained and remain enforceable. That is the government’s clear intention, and the government has been advised that the amendment has been drafted accordingly. The government will continue to monitor the question of protections for outworkers in the award modernisation process. Should it be necessary to further legislate to ensure the continuation in a modern, simple award system of the current part 9 protections of the clothing trades outworkers’ award, the government will do so in its substantive workplace relations bill.

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

Through you, Mr Temporary Chairman Bartlett, I thank the minister for outlining those amendments, and I am very pleased to see that the government has included them. The issue was raised during the inquiry and, as I think I have said in this place before, there is and has been in the past pretty strong cross-party support to ensure outworker protections. I have a specific question. I want to clarify something in amendment (15). In subclause (3) it is stated that an outworker means an employee. I have heard the minister say ‘employee’ and ‘contractor’, yet the word ‘contractor’ does not appear there. I want to ensure that this does pick up contractors. As we all know, a large part of this work is actually done by people employed on contracts and, in fact, subcontractors for some contracts.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Siewert, I have just been referring back to the notes I have on these amendments. My understanding is that it is amendment (32) which is designed to make clear the government’s intention that modern awards can include provisions relating to both employee and contract outworkers in appropriate cases. The intention of that is to enable protective clauses like those found in the clothing trades award to be included in modern awards.

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

The minister is quite correct. At subclause (32)576K(1)(b) it is specific. It refers to:

... an individual who is a party to a contract for services, and who, for the purposes of the contract.

To assist Senator Siewert, the minister was accurate in her remarks.

May I say, whilst I am standing, that outworker concern in this chamber has indeed been—to the credit of all parties—a genuine cross-party issue and cross-party concern, and I am very glad that the Labor government has continued that tradition and has recognised their genuine and special needs. I indicate that the Australian Democrats will support these amendments.

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

Just before these amendments are put to the vote, I also, as chair of the Senate Standing Committee on Education, Employment and Workplace Relations, want to thank all parties and senators who involved themselves in this issue. As has been said a couple of times now, it is an issue that has received attention from all parties very constructively. I note that Senator Abetz is in the chamber. I also want to thank him. When he was the minister handling this portfolio, he worked very constructively with the committee and all other senators on this issue to get some very positive outcomes. I want to recognise that contribution from the now opposition; and, of course, the Democrats have a particularly long history of pursuing this matter and initiating inquiries, going back to since the formation of the Australian Democrats. More recently, the Australian Greens have taken a very strong interest in these areas. I commend both Senator Murray and Senator Siewert also, and I commit the Labor Party members of this committee to continue that good work.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Just to reiterate—as I think I may have inserted an additional word into what I read into the HansardI want to reaffirm the government’s intention as previously outlined. Should it be necessary to further legislate to ensure the continuation in the modern, simple award system of the current part 9 protections of clothing trades outworkers, the government will do so in its substantive workplace relations bill.

Question agreed to.

I move government amendments (8), (10), (33) and (34) on sheet PA412 together:

(8)    Schedule 1, item 2, page 11 (lines 1 to 3), omit paragraph 346G(4)(c), substitute:

             (c)    must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

(10)  Schedule 1, item 2, page 12 (lines 31 to 33), omit paragraph 346H(3)(c), substitute:

             (c)    must not be an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

(33)  Schedule 2, item 9, page 100 (lines 17 to 19), omit the definition of enterprise award in section 576U, substitute:

enterprise award means an award that regulates the terms and conditions of employment in a single business only (being the single business specified in the award).

(34)  Schedule 2, item 9, page 100 (line 21), omit “the matter”, substitute “a matter”.

Amendments (8) and (10) are consequential amendments to clarify the definition of an enterprise award—that is, an award binding on a single employer only. Amendment (33) is a technical change to the definition of ‘enterprise award’ in the proposed section 576U to make it clear that it refers to awards that bind only a single business. Amendment (34) is a minor technical consequential amendment.

Question agreed to.

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

I move Australian Greens amendment (7) on sheet 5451:

(7)           Schedule 2, item 9, page 99 (after line 23), after subsection 576T(1), insert:

     (1A)    Despite subsection (1), a modern award may include terms and conditions of employment of the kind referred to in subsection (1) if the AIRC is of the opinion that such conditions are necessary to provide a fair minimum safety net.

This amendment relates to state based differences. The bill prohibits modern awards containing state based differences except for a five-year transition period. We appreciate the point the government makes—that it is creating a national system and that historical state based differences have no place in such scheme.

However, we are concerned about the rigidity of the system. We are concerned about the rigidity of the process and the lack of discretion given to the AIRC to include matters that may be relevant and important in maintaining a fair safety net. This, again, came up in the committee hearing. One of the organisations that raised this was the ACTU, but it was raised by numerous other parties who made submissions. We believe that there should be a capacity to look at state based differences to ensure that we have a rigorous awards system and that issues that are relevant to specific states—those that are not historically driven and are genuinely required for the differences between states—are able to be included in this process.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The government does note the concerns raised before the Senate inquiry into the bill about the requirement for the commission to ensure that modern awards do not contain state based differences and to ensure that they are removed within five years. Our view is that the section would not prevent the commission including in awards terms and conditions that are appropriate and are based on objectively ascertainable regional circumstances, based on the evidence of the parties that such a term or condition is necessary to ensure a fair minimum safety net.

It is appropriate, however, that new modern awards operating in a national system should not replicate state based differences from old awards that exist merely as a matter of historical circumstance. I note that the government has allowed for the commission to include transitional arrangements in modern awards to deal where necessary with issues such as these.

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

I interpret what you said as meaning that the AIRC will have the discretion to deal with some of the regional differences beyond the transition period if they are genuine regional differences and not just historically based state differences.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I think the issue really arises from the way in which 576T is drafted. It refers to state or territory boundaries, and my advice is that, after the five-year period to which you have referred, we do not believe it precludes terms and conditions that are appropriate and based on objectively ascertainable regional circumstances.

Question negatived.

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

by leave—I move Democrats amendments (1), (3) and (7) on sheet 5457, revised, together:

(1)           Schedule 3, page 108 (after line 7), after item 1, insert:

1A  After paragraph 21(a)

Insert:

           (aa)    monitor pay equity;

           (ab)    hear individual complaints of pay inequity;

           (ac)    provide simplified proceedings for the conduct of matters arising under paragraph (ab) which comply with sections 108 and 109.

(3)   Schedule3, page 108 (after line 12), after item 2, insert:

2A  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 the 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 the 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.

(7)   Schedule 3, page 108 (after line 12), after item 2, insert:

2E  After paragraph 150B(1)(h)

Insert:

           (ha)    investigate, research and regularly publish pay equity outcomes for all ITEAs and collective agreements;

As one does in preparation for debates on substantive bills, you go back over the ground covered in previous substantive bills. I went back as far as Work Choices and, in looking at that, found it to be a bit depressing because, unlike this process where amendments are being dealt with as they should be—each on their merits—I recall that a lot of ours were rolled up under a guillotine. Some were not rolled up in the guillotine and they were very topical and covered issues of fairness. I did want to bring forward the amendments that were in many particular specific instances supported by the Labor Party in opposition, so hopefully they will now support them in government.

My amendments (1), (3) and (7) all cover issues of pay equity and inequity. Unless the chamber wishes, I do not intend to go through all of them in depth. Amendment (3) has a quite substantial change because, when we originally moved that amendment in 2005, we were very concerned that insufficient fairness imperatives were put upon the Australian Fair Pay Commission in its work, including in areas to do with young people, disadvantaged people and the promotion of skills development.

I doubt that senators’ memories would be exact enough but, having looked back at the debate, my memory is that the Labor Party supported this at the time. We can always go and look for the exact element. I am putting you on the spot deliberately—even if you do not want to deal with this right now because you are working on a transitional bill—in saying to the Labor Party in government that it is important that, as far as possible, fairness be wound into the directions and objectives of regulatory tribunal or commission bodies, such as the Australian Fair Pay Commission.

So essentially these are three fairness mechanisms. They have a history; they have been put before the chamber in past days. They are of course updated. For instance, amendment (7) refers to ITEAs, which certainly were not referred to in 2005. But, by and large, they are a regurgitation of previously held positions by the Australian Democrats.

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

While the Greens do not object to these amendments and, obviously, issues dealing with pay—we had the earlier debate around awards and pay equity—the reason we chose to try to amend the bill in the way we did is that we thought it was an issue that should be dealt with through the awards system as a structural issue. We thought that, while looking at individual cases is extremely important, it does not actually deal with the structural undervaluing of women’s work and the work that women are more traditionally involved in, such as child care et cetera. So, while we will be supporting these amendments, that is why we preferred to use the award system. We wanted to see if the government supported the award system to be used as a mechanism in order to ensure pay equity, because it is more of a structural issue than just an issue where individuals bring complaints about pay equity and being disadvantaged.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I want to make some comments in relation to the amendments moved by the Democrats. The first is in relation to the pay equity monitoring powers. I suppose I should start with a general proposition, and Senator Murray did in fact allude to this. We do take the view that this is a transition bill. The focus for the government is on delivering the transitional bill as per our implementation policy. We are not minded to change the powers of the Australian Fair Pay Commission, because our policy, as you know, is to establish a new entity, which is Fair Work Australia. A number of the comments that have been made by senators in this place are obviously matters the government will consider. We will also engage in substantive consultation with stakeholders about the powers and the scope of Fair Work Australia prior to the introduction and passage of the substantive bill. So that really is the context in which we consider your amendments, Senator Murray.

In relation to amendment (1), we have a view of a limited role for the AFPC during the two-year transition period in relation to a minimum wage-setting function only. One of the reasons for this is that we do not want that function to overlap with the award modernisation function. As I have previously discussed, the award modernisation request includes the requirement for the commission to promote pay equity principles, and that process will be open and include consultation with stakeholders so these issues can be raised with the AIRC and can be taken into account in the modern award-making function.

In relation to amendment (3), which revises quite substantively the AFPC’s wage setting-parameters, I again reiterate the position that I put at the outset: our view is that we are moving to a different system, one which involves a different body, and we perceive a limited role for the AFPC during this two-year transition period. We have made clear in our policy that Fair Work Australia will conduct annual wage reviews which will take effect on 1 July each year and that the FWA will publish updated pay rates before this date to provide certainty for employers and employees. Minimum wage-setting criteria for Fair Work Australia would be determined as part of the government’s substantive workplace relations reforms.

Finally, amendment (7) amends the list of the Workplace Authority’s functions to include a range of matters in relation to pay equity. The government’s position is that it is protecting the safety net for both women and men through our new no disadvantage test for workplace agreements. In addition, as I discussed earlier, in setting modern awards the commission is required to have regard to promoting pay equity in modern awards. From 2010, Fair Work Australia will replace the Workplace Authority and the AIRC. The functions, powers and matters to take into account for the operation of Fair Work Australia will be determined as part of our substantive workplace relations reform package.

Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I have just a very quick question for the minister. Do I understand, from her comments, that there is an intention to abolish the Australian Fair Pay Commission or not?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

The government’s position is as per our policy—that is, when the system is fully operational, which is intended to be by January 2010, then it would be envisaged that Fair Work Australia will take over the functions of the AFPC.

Question negatived.

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

by leave—I move Democrat amendments (2) and (4) on sheet 5457, revised, together:

(2)           Schedule 3, page 108 (after line 7), after item 1, insert:

1B  Paragraph 22(1)(a)

After “conduct”, insert “annual”.

(4)    Schedule 3, page 108 (after line 12), after item 2, insert:

2B  Paragraph 24(1)(a)

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

Before I move to these amendments, I will make two remarks arising out of the brief, prior debate. One of the reasons we moved the fairly significant shift in amendment (3) was that the Fair Pay Commission is considering wage awards right now. Those will come into force—will be decided on—as I understand it, prior to the substantive bill, so we were trying to influence the considerations they must take into account. However, that is as it may.

The second point I want to make is with respect to the remarks of the shadow minister. I really think the issue of the future architecture, if you like, of our industrial relations system deserves far more debate and examination than it might have had to date. The Australian Democrats’ opinion is that it is very unwise to tie in a regulator and a commission as one body, which, as I understand it, is the Labor government’s policy. There are, of course, instances where that does occur. The ACCC, for instance, has a tribunal and a commission all under the same roof. But the Australian Democrats’ view is that you need something very clean and very simple to understand. We argue for a separate industrial relations commission which would absorb the functions of the state industrial relations commissions, the federal Employment Advocate and the Fair Pay Commission—either totally or you could create divisions within that.

With respect to the workplace regulator, we would see a single, national, strong, independent workplace regulator that would absorb the regulatory functions of the state departmental inspectorates and absorb the regulatory functions of the Australian Building and Construction Commissioner and other federal regulators. Again, we have no objection to those being in divisions. If it is decided that you have a specific division which is the Australian building and construction division, so it should be. But personally I think there are real dangers in the present path that the Labor government has set out on, with just one authority. I think you should consider splitting the tribunal, with its quasi-judicial function, from the regulator.

I raise these issues because I am not as convinced as many that the substantive bill that you are proposing to put up will have an easy passage. Although the coalition will not have a majority in the Senate, I am not so convinced that the Greens or Senator Fielding or Senator Xenophon will not have an independent view on these matters. These are matters of principle—for instance, whether you stick a regulator in with a tribunal or not. So I thank the shadow minister for his interjection, because I wanted to make what I think are important policy points.

I return, after that brief digression, to items (2) and (4) on sheet 5457 revised. Item (2) in fact confirms the policy that the minister has expressed—namely, that Labor will move to an annual wage-setting system. I think that is for the good. This simply says that is to happen now. Item (4) is a consequential amendment.

Question negatived.

I move on to item (5) on sheet 5457 revised. That is a very simple amendment. I dislike the idea that minimum wages and those sorts of considerations should be done only with an eye towards the economy. I think when you are talking about safety nets and minimums, you have to pay attention to society and what is necessary in society. So I have simply repeated an amendment we put up in 2005, which asks that they take into account society as well as the economy. I move item (5) on sheet 5457:

(5)    Schedule 3, page 108 (after line 12), after item 2, insert:

2C  Paragraphs 103(1)(b) and 103(2)(b)

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

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

In relation to item (5), this really is the same issue as the AFPC. The AIRC will be replaced by Fair Work Australia, and the functions, powers and matters to take into account for the operation of Fair Work Australia will be determined as part of the government’s substantive workplace relations reform.

Question negatived.

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

by leave—I move together items (6) and (8) on sheet 5457 revised:

(6)    Schedule 3, page 108 (after line 12), after item 2, insert:

2D  At the end of section 104

Add:

        (2)    In taking into account matters required by subsection (1), the Commission must conduct periodic gender pay audits and work value tests before setting the FMW.

(8)    Schedule 3, page 108 (after line 12), after item 2, insert:

2F  At the end of subsection 150B(2)

Add:

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

We have had the debate about this issue previously, so I will not speak to the items.

Question negatived.

I move item (9) on sheet 5457 revised:

(9)    Schedule 3, page 109 (after line 4), after item 7, insert:

7A  After Subdivision A of Division 2 of Part 7

Insert:

Subdivision AA—Indexation of minimum wage

181A 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 of indexed amounts is to be worked out in accordance with section 1194 of the Social Security Act 1991.

The chamber will note that this refers to the indexation of the minimum wage. It is the Australian Democrats’ view that an easy device for dealing with the minimum wage issue and keeping it current and up to date with the current value of money would be to index it. Like any economist, I recognise the dangers if inflation gallops away. You might get a bit concerned if you were indexing it in Zimbabwe, where right now I understand the indexation would be about 150,000 per cent, but I do not expect any such danger here. I rather like Treasurer Swan’s declaration that, in minimum wage discussions, attention needs to be paid to the tax welfare area as well and to how well people are doing with respect to government policy and cuts there.

I know that argument has previously attracted the coalition—that is, you cannot examine wage claims in isolation of tax and welfare changes which advantage lower income people. My attention was drawn to this many years ago, and I have remarked on it in this chamber before. It was first presented to me on this basis: if you give a minimum wage increase of say $17, in the hand of the recipient it might be as low as $8 and in the hand of the employer, because of on-costs, you might be talking about $23 or $24. That is not productive or efficient for either party—either the employee, who gets $8 out of $17, or the employer, who ends up with a cost of $23. It is important to pay attention to what is being offered in the tax and welfare area with respect to wage claims. Nevertheless, having said that, you do need to keep your minimum wage standard up to date and indexation would achieve that. I am well aware that the minister is going to knock this off. I certainly will not push it with a division or anything, but I really want to take the opportunity of this bill to put before you policy ideas which I would like you to consider when you come to the substantive bill. That is the purpose behind this.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I want to respond to Senator Murray. There is a substantive policy issue which is behind this amendment in relation to how you go about dealing with changes to the minimum wage. It is the government’s position that it is better for the minimum wage to be set in an open and transparent process. That is what is envisaged in the Forward with Fairness policy. Under that policy the AFPC will be replaced by Fair Work Australia, and Fair Work Australia will conduct any wage reviews which will take effect on 1 July each year. Fair Work Australia will also publish updated pay rates before this date to provide certainty for employers and employees. As I have previously indicated, the issue of minimum wage setting criteria will be determined as part of the government’s substantive workplace relations reform.

Question negatived.

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

Before I move the last of my amendments, I have just been given a sheet which is an answer to a question on notice I put to the government. I am both impressed and pleased that I got a rapid and substantial response to that question. The question really was whether there are employees who are not covered by the minimum wage. Through you, Madam Chair, I would ask the minister if she would table that document. If she has not got it before her, I can table the one I have and, therefore, it is available to the chamber as a whole. Or we could incorporate it if she thinks that is easier and, therefore, it is in Hansard.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

We are happy for it to be tabled.

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

I seek leave to table the answer to the question on notice provided by the minister regarding the minimum wage.

Leave granted.

I move Australian Democrats amendment (10) on sheet 5457:

(10)  Schedule 3, page 113 (after line 20), after item 40, insert:

40B  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 ITEA—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.

With respect to item (10), this refers to the information statement and seeks to ensure that information is provided in a manner which is better than the existing proposals. I believe it will improve genuine consent for vulnerable workers, unless the chamber needs more elucidation. I move the amendment on its merits.

Question negatived.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government amendment (36) on sheet PA412:

(36)  Schedule 5, item 6, page 119 (line 18), omit “termination”, substitute “agreement”.

This is a minor amendment to correct a technical error in the sentence regarding parties to the termination; the word ‘agreement’ is inserted instead.

Question agreed to.

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

by leave—I withdraw Australian Greens amendment (8) on sheet 5449, which moves to preserve state agreements, as a similar amendment has already been put by the government.

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I move government amendment (37) on sheet PA412:

(37)  Page 119 (after line 19), after Schedule 5, insert:

Schedule 5A—Transitional treatment of State employment agreements

Workplace Relations Act 1996

1  After clause 16 of Schedule 8

Insert:

16A  Commission may extend or vary preserved collective State agreements

        (1)    The Commission may, on application by any person bound by a preserved collective State agreement, by order:

             (a)    extend the nominal expiry date of the agreement; or

             (b)    vary the terms of the agreement.

        (2)    However, before making the order, the Commission must be satisfied that:

             (a)    all parties bound by the agreement genuinely agree to the extension or variation; and

             (b)    none of the parties have, after the introduction day:

                   (i)    organised or engaged in, or threatened to organise or engage in, industrial action in relation to another party to the agreement; or

                  (ii)    applied for a protected action ballot under section 451 in relation to proposed industrial action; and

             (c)    in the case of a variation—the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under:

                   (i)    any relevant State award in relation to the employees; and

                  (ii)    any law of the Commonwealth, or of a State or Territory, that the Commission considers relevant.

        (3)    If the Commission extends the nominal expiry date of the agreement, the extended date cannot be more than 3 years after the date on which the order is made.

        (4)    The employees bound by the agreement are taken, for the purposes of paragraph (2)(a), genuinely to agree to the extension or variation if:

             (a)    the employer gives all of the employees bound by the agreement at the time of making the extension or variation a reasonable opportunity genuinely to decide whether they agree to the extension or variation; and

             (b)    either:

                   (i)    if the decision is made by a vote—a majority of those employees who cast a valid vote; or

                  (ii)    otherwise—a majority of those employees;

                      genuinely decide that they agree to the extension or variation.

        (5)    To avoid doubt, the terms and conditions of employment under a relevant State award may, for the purposes of paragraph (2)(c), include terms and conditions that did not apply on the reform commencement, or that have been varied since the reform commencement.

        (6)    In this clause:

introduction day means the day on which the Bill that became the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 was introduced into the House of Representatives.

relevant State award, in relation to an employee, means:

             (a)    if, immediately before the reform commencement, the employee was bound by, or a party to, the original collective agreement to which the preserved collective State agreement referred to in subsection (1) relates, under the terms of that agreement or a State or Territory industrial law as in force at that time—the State award that would have bound the employee at that time but for that agreement; or

             (b)    otherwise—the State award that would have bound, or but for the application of a State employment agreement would have bound, the employee at that time if the employee had been employed by the employer at that time.

2  After clause 21E of Schedule 8

Insert:

Division 5A—Coercion

3  After subclause 22(1) of Schedule 8

Insert:

     (1A)    A person must not:

             (a)    take or threaten to take any industrial action or other action; or

             (b)    refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to the extension of the nominal expiry date of, or the variation of, a preserved collective State agreement under clause 16A.

Note:                The heading to clause 22 of Schedule 8 is altered by adding at the end “etc.”.

4  Subclause 22(2) of Schedule 8

Omit “Subclause (1)”, substitute “This clause”.

5  Subclause 22(3) of Schedule 8

Omit “subclause (1)”, substitute “this clause”.

This amendment allows for the variation of preserved collective state agreements where all parties agree.

Question agreed to.

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

by leave—I move Australian Greens amendments (1) to (5) on sheet 5453:

(1)    Page 121 (after line 11), at the end of the bill, add:

Schedule 8—Repeal of provisions relating to prohibited content

Workplace Relations Act 1996

1  Section 321 (definition of prohibited content)

Repeal the definition.

2  Subdivision B of Division 7 of Part 8

Repeal the Subdivision.

3  Paragraph 367(2)(b)

Repeal the paragraph.

4  Section 436

Repeal the section.

5  Subsection 453(4)

Repeal the subsection.

6  Subsection 504(4)

Repeal the subsection.

(2)    Schedule 1, item 15, page 40 (line 2), omit “(b),”.

(3)    Schedule 1, item 15, page 40 (line 10), omit “(b),”.

(4)    Schedule 1, item 15, page 42 (line 5), omit “(b),”.

(5)    Schedule 1, item 46, page 50 (line 15), omit “Paragraphs 360(2)(b) and”, substitute “Paragraph”.

This relates to the issue of prohibited content. As I understand it, it is the government’s policy to remove restrictions on the content of agreements. Employers and employees should be free to negotiate the content of their agreements. Furthermore, the prohibited content rules are complicated and carry over into restrictions on industrial actions. Employees and employers also run the risk of breaching civil penalty provisions. We believe this is a straightforward amendment to delete prohibited content rules and, as it is government policy, we do not see why it does not do it now rather than wait until the substantive bill, because I can hear that coming down the track. We believe this would help protect workers from this point forward, rather than waiting another two years. This issue was specifically raised during the committee hearings.

We believe that it is more appropriate, as we move forward into the new industrial relations system—particularly with regard to those areas of the bill that remain that can impinge on the setting of the new system and the process of putting in place the ITEA system for the next two years—that we deal with that now rather than in the future when, I understand, it is government policy that this will be removed. I would be interested to know why the government are not moving this particular element of the Work Choices regime now rather than in the future. If they are not, is it in fact government policy that it will be removed in the substantive bill?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Senator Siewert anticipated what I was going to say. We set out in our Forward with Fairness policy implementation plan what the government intended to address in this bill, and we have done so. We have kept faith with those election commitments. We do have a policy to introduce a simple and balanced collective bargaining framework, and the government are currently consulting with a range of parties in relation to many issues relevant to the substantive legislation, including agreement making.

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

I am seeking clarification. If areas in the new ITEAs or agreements extend into areas that perhaps are now under the prohibited content provisions, does that mean that workers will be fined if they ask for something that is in fact now government policy?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

Obviously there are hypothetical situations which you might put to me, Senator Siewert, which I cannot comment on. If the question is ‘Will the current rules, in relation to which no amendment is moved and carried by this chamber, continue to apply?’ then the answer is yes.

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

So we could potentially be in the situation where workers are fined for trying to address something that is included in the prohibited content provisions, when quite clearly it is government policy that this will be changed in the future?

Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I am not sure I can assist Senator Siewert any more on this point. I have stated that I am not going to respond to hypothetical scenarios. If the question is ‘Do those provisions continue?’ clearly, as a matter of law, they do. If amendments are not carried by the chamber and there are no amendments on these issues proposed by the government, then the provisions continue. I reiterate: this bill goes to those issues that we said it would in our implementation plan, in terms of the scope of the transition bill. These issues pertain to agreement making. The government will consult all relevant stakeholders and those issues will be addressed in the substantive legislation.

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

Through you, Madam Temporary Chair Moore, I would suggest to the minister that, if an unforeseen consequence is that individual workers end up in the unfortunate position of being fined in an area where the law is to change shortly, the government should consider act of grace payments—and I do not expect the minister to answer this right now—where there is merit in making such a payment.

Question negatived.

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

I move Greens amendment (1) on sheet 5456:

(1)    Page 121 (after line 11), at the end of the bill, add:

Schedule 9—Repeal of certain provisions relating to unfair dismissal  

Workplace Relations Act 1996

1  Section 578 (definition of operational reasons)

Repeal the definition.

2  Paragraph 581(2)(b)

Repeal the paragraph.

3  Subsection 643(1)

Omit “subsections (5), (6), (8) and (10)”, substitute “subsections (5) and (6)”.

4  Subsections 643(8) and (9)

Repeal the subsections.

5  Subsections 643(10) to (12)

Repeal the subsections.

6  At the end of paragraph 645(5)(b)

Omit “or”.

7  Paragraph 645(5)(c)

Repeal the paragraph.

8  Section 649

Repeal the section.

We have had a discussion about unfair dismissal—quite a substantive discussion—so I will not go back over old ground. I would like to point out, as I briefly indicated in the previous discussion, that these amendments also relate to operational reasons. We have seen a number of high-profile cases since Work Choices came in where operational reasons have been given broad meaning, which essentially through that process gave employers wide discretion to dismiss employees, even where there were, in fact, over 100 employees. Redundancy has always been an exemption under unfair dismissal legislation, but operational reasons, as we have seen, go much further than that. We also believe it is appropriate to get rid of the provisions that deal with operational reasons. We differ slightly on that issue. This amendment, we believe, goes beyond the previous amendments that we considered in the chamber not long ago.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.