Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

My question is directed to the Minister representing the Minister for Employment and Workplace Relations, Senator Wong. I refer the minister to section 13 of Labor’s National Employment Standards and the current confusion as to whether there is any recourse for employees who believe their employer has ‘unreasonably’ refused a request for more flexible hours or an extension of their parental leave. Does the minister agree with the Minister for Small Business, Independent Contractors and the Service Economy, who said:

“That’s the end of the matter. There’s no adjudication, no legal process and no union official under the bed”—

once an employer makes their decision?

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

As we previously discussed in question time in response to questions from Senator Fisher, the government have released, consistent with our election commitment, a set of National Employment Standards. There are a range of them, but one of them is maximum weekly hours. I have said previously that the NES maximum weekly hours provides a guarantee of maximum weekly working hours for a full-time employee of 38 hours and, for other employees, such as part-time or casual employees, the lesser of 38 hours per week or their ordinary hours of work. It is the case that the employer may request or require an employee to work reasonable additional hours in a week beyond the 38 hours. The National Employment Standards—and I think we have traversed this already on previous occasions—outlines a number of matters that must be considered in determining whether additional hours are reasonable. These matters refer back to the individual circumstances of the employer, the employee and their workplace. This is instead of a rigid one-size-fits-all rule.

I want to make a point in terms of the issue of reasonableness. The current act—that is, the act that existed under the previous government—also draws on the concept of reasonableness for additional hours. But the list of matters which I have outlined and which are set out in the NES provide for greater clarity in terms of how this matter should be approached. In particular, the government has included additional factors which would be relevant, such as the employee’s level of responsibility, the usual patterns of work in the industry or whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working those hours or the employee’s remuneration reflects an expectation of working hours. This is a considerable improvement on the current act and should allow for more effective management of maximum weekly hours in line with the needs of both an employer and employees.

I would make the point—and I know the opposition has tried to play a bit of politics with this, which is their wont—

Opposition Senators:

Opposition senators interjecting—

00AOU Wong, Sen PennySenator WONG—I make the point that, on this issue of reasonableness, it is interesting to note that there are a range of commentators who do not appear to share the concerns which those on the other side have attempted to beat up. These include an industry group—

G0D Bernardi, Sen Cory 0Senator Bernardi—Which one?

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

It was ACCI. On 17 June 2008 ACCI issued a media release in which it said:

Industry does not share concerns expressed today by some commentators about the concept of ‘reasonableness’ in these standards. One size does not fit all, and concepts like ‘reasonableness’ are needed if rules are to be set across the economy.

So I am very pleased to be able to provide, for the opposition’s edification, an indication of ACCI’s publicly stated views on the issue of reasonableness.

Ross Lightfoot (WA, Liberal Party) Share this | Link to this | Hansard source

Mr President, I ask a supplementary question. Will the minister then confirm that an employer’s decision is final and that there will be no avenue for employees to seek an appeal or variation to that decision?

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

What I can confirm is the content of the NES in relation to this issue. As I have said already, that is 38 hours for full-time employees, and for other employees it is the lesser of 30 hours per week or their ordinary hours of work in a week. As I have said, the concept of reasonableness—

Mary Fisher (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Fisher interjecting—

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

Senator Fisher is welcome to interject on this. On occasion she did practice in this area, and she would know that the concept of reasonableness is not an unusual concept in industrial law.