Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 16 March 2009.

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

I have a number of general matters that I seek to raise in relation to this bill. The Senate is now finally commencing discussion of the Fair Work Bill 2008 in the committee stage and, depending on some of the answers that I may or may not get in relation to the matters that I raise, I foreshadow potential further amendments. I will go through a number of questions for the minister to answer. The first and most important one for all Australians is whether or not the government is willing to provide the assurance that no worker will be worse off as a result of the changes being made to the industrial relations regime by this legislation.

I then ask whether the government are willing to provide similar assurances that no employer, community organisation or, indeed, consumer will be worse off as a result of these changes. Of course, just to contextualise it, it was the Australian Labor Party that demanded a similar guarantee from the previous government. They made a big song and dance about that, and I think it appropriate for this government now to indicate whether they are able to give the sort of assurance that they were demanding of the previous government.

Can I also invite the minister to confirm that in the bill that is before us, which is some 570 pages, about 10 per cent of it or more is now to be amended by government amendments, with 52 pages of amendments—albeit that we have just had circulated some further and revised government amendments: one of eight pages and this one, QW366, which is of some nine pages. We are now having revisions of amendments being put by the government. I would like to know how many separate changes there now are. I understood there were 218, but we now have more. There are 14 separate documents outlining all of these amendments—if I am correct, 52-plus pages of amendments and, of course, 50 pages of an additional explanatory memorandum. I just think it is important that we know the full extent.

I believe it is also incumbent on the minister to advise the Senate what deals, if any, have been done with the minor parties in relation to a whole range of issues. For example, has the government indicated it is willing to support an amendment by Senator Fielding to provide that a union permit holder exercising right of entry for the purpose of investigating an alleged breach may only inspect documents relating to employees who are not members of the permit-holder’s union if that employee gives written consent or if Fair Work Australia determines that it should be permitted to do so?

I would also be interested to know whether the government has agreed to support an amendment by Senator Xenophon to include an additional explanatory note to the provision regarding representation as a further guide to Fair Work Australia that small businesses and employees without expertise in or who have difficulties with English should be able to be represented before Fair Work Australia. If these sorts of agreements have been reached, when are we going to be seeing the amendments that relate to them? Has the government indicated it will support an amendment moved by Senator Xenophon which waives the requirement to provide 24 hours notice of intention to enter for the outworker sector? If that is the case, I am not sure at this stage whether any amendments have, in fact, been circulated in the name of Senator Xenophon. If the government is agreeing to these things behind the scenes—and they may well be good amendments—when will the party that has the most seats in this place be given the courtesy of an indication as to what those amendments might be?

I am also inquiring as to whether the government has agreed to support an amendment by the Greens in relation to the National Employment Standards for carers of disabled children under 18 years of age regarding a right to request flexible working arrangements—an issue, might I add, that I pursued throughout the committee hearings and was expecting the government to move an amendment about. It did not, but the Greens did and I congratulate them on that. But if an agreement has been reached, I think it would be appropriate for us to be told at the commencement. Indeed, there are a number of other hunches that I have in relation to the agreements reached by the government with crossbench senators. From that perspective, I think we are entitled to be given a full explanation. Indeed, I just note that there is now a revised running sheet with further amendments and proposals.

Can I just also ask the minister—possibly in his role as Minister for Human Services; in a bizarre way, it does apply to this legislation—about community organisations. There is one in my home state of Tasmania called Community Based Support—South Inc; they provide great support to people in need in their homes. In their February 2009 newsletter, they write:

The election of the Rudd Labor Government brought an effective end to Australian Workplace Agreements (AWAs). From April 2009 our support workers will mostly work under the Community Services Award.

Will this spell the end of consumer choice of worker and time of services? The answer for many is “unfortunately, probably yes”, mainly due to the enormous cost of continuing current work patterns under the Award (costs would at least double).

Now, that is just one of the practical implications of the government’s legislation. I am wondering whether the government is making any provision to ensure that organisations such as Community Based Support—South Inc. will be given the extra funding needed so that they are able to continue with the excellent and vital service deliveries that they undertake.

Having raised that list of introductory questions, I indicate, before I sit down and wait for the answers, that from the opposition’s point of view there are a number of amendments that we will be supporting, government amendments that we believe are technical and make sense. We can also indicate that we have only one matter of concern to us, and that is that we have a practical piece of legislation that will not prejudice jobs and small business and that does not deliver excessive power to the trade union movement. Those are basically the three benchmarks on which we will be judging the proposed amendments as we proceed. If the minister could commence by addressing some of the issues that I have raised, I would be much obliged.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Some of those answers will require a little bit of time to collate. As I understand it, that is now underway. In relation to one of the last matters—community based organisations—perhaps I will put my Human Services hat on. It would be helpful if we could take that away and have a look at what the circumstances are in relation to that particular community organisation, particularly the type of funding it accesses or grant that it is on and the length of the grant. There are obviously a range of circumstances that might surround that particular organisation. While I reject the assertion that you make in relation to it, it is worth while in many instances to have a look at the actual circumstances of the community based organisation and work out what type of grant it is being funded by, what purpose the grant is for and of course whom the grant is from. Given that the Human Services portfolio, which I look after, does not provide grants of that nature, it is not within my portfolio, as I understand it. But I am happy to look at it in any event. It may be from FaHCSIA or another Commonwealth department, but I am happy to look into the particular circumstances.

With respect to the number of amendments, as I understand it we will provide you with those details. With respect to the particular issues that have been negotiated, it is clear that there are a large range of interests in the Senate, with the two independents, yourselves as the opposition and the Greens. These matters do require careful consideration and negotiation, and that has obviously been undertaken and we do have a revised running sheet that details those. What I am looking for is the letters that may assist. We will be able to deal with those shortly as well. I understand they are now being accessed. It is really then open to you whether we do it in seriatim and on each amendment indicate whether there is an agreement and how it is being progressed or whether you want that upfront in a way that may be able to demonstrate what agreements have been reached with respect to the Greens, Senator Xenophon and Senator Fielding. I am open to either provide that as we deal with each amendment as we go through or, alternatively, see if we can collate that and provide it first. Of course, that would take some time, but we will have the dinner break shortly and I suspect we will be able to undertake that task. Senator Abetz, could you indicate which you would prefer from the latter and the former?

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

Our difficulty is that we do not fully know what is going to be put to us after the dinner break. This legislation has now been around, allegedly in Forward with Fairness, since before the election, but of course the legislation that we now have before us is a significant departure from the election policy and therefore it is very difficult for us to know how best to proceed in relation to that without actually seeing the amendments. So I will have to reserve my position and the coalition’s position in relation to that.

Whilst that is being determined, I will use the time before dinner to see whether we can get some specific answers, albeit not to matters that are before us at this stage, in relation to amendments. Having been, if I might say, a fairly active participant in the Senate Standing Committee on Education, Employment and Workplace Relations inquiry into the Fair Work Bill, I placed a number of questions on notice. I received some written answers. In South Australia, if my memory serves me correctly, we heard from Yum! Restaurants International, a business organisation that is into fast foods. They were concerned about enterprise awards being able to continue under this new regime. I asked: will the legislation allow for new enterprise awards to be made along similar lines to that which Yum! International operates under? The answer that I was provided with says that the transitional bill will ‘allow parties to “modernise” enterprise awards so that they can continue to operate’. That is fine if you have an ongoing enterprise, but my specific question was: will the legislation allow for new enterprise awards? And the written answer did not canvass that. If I could be provided with an answer in relation to that, that would be helpful.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I understand it, we will hopefully be able to provide an answer as we progress. But, in going back to the earlier matter, firstly, the Greens have been cooperative in terms of reaching an agreement on how we can proceed with the Fair Work Bill. The commitments that the government has undertaken in discussions with the Greens include—I will leave the broad areas and then I will table the documents so that you have that for your record or for the Senate record—flexible work for carers of children with disabilities. The government agrees to support that amendment moved by the Greens. The government agrees that this amendment is of significant importance to parents in that situation and that it is neither desirable nor necessary to wait until the final report of the House of Representatives Standing Committee on Family, Community, Housing and Youth inquiry into carers to take this step.

In regard to a Fair Work Australia review of the right to request flexible work, section 653 of the bill currently requires Fair Work Australia to review developments in enterprise bargaining after three years from commencement—that is, 1 July 2012. The government agrees with the Greens that this bill should be amended to provide that the review process in section 653 be extended to include an examination of the use of individual flexibility arrangements and further research into the circumstances in which employees make requests for flexible working arrangements under subsection 65(1) and requests for extension of unpaid parental leave under subsection 76(1), the outcome of such requests and the circumstances in which such requests are refused.

In addition, the government agrees to include in the transitional and consequential bill an amendment requiring Fair Work Australia to conduct an interim review of modern awards after two years of their operation, from 1 January 2012. I will not set out what it will be required to review; you will be able to examine that document by the dinner break.

The contribution of the not-for-profit sector in providing community based employment law services to employees in need is important. The government agrees with the Greens that services provided by these organisations are valuable and should be effectively integrated with the services provided by Fair Work Australia and the Fair Work Ombudsman. To facilitate this, the government agrees to conduct a government review by jointly agreed persons into community based employment advice services. We will need to discuss the terms of reference of that review—we agree with the Greens in respect of that. We will provide the outcomes to that in due course.

Pay equity is another matter that figured high on the agenda to be addressed. The House of Representatives Standing Committee on Employment and Workplace Relations is, as the Senate may know, currently conducting an inquiry into pay equity and increasing female participation in the workforce. The government agrees to consult with the Greens in respect of the committee’s recommendations when they are forthcoming. The government also agrees to have the Fair Work Ombudsman prepare a guide on pay equity issues as part of the new function to be detailed in the government amendment to the bill. That is a matter that the Greens have put forward, and the government agrees to that. I understand the Greens have sought to amend clause 485, conscientious objection certificates, and the government will support that amendment. The government understands that the Greens will be also moving a number of additional amendments to the bill concerning industrial action and other matters but notes that it is not anticipated that these amendments will receive the support of the government.

That provides an outline of those matters that we have reached agreement on with the Greens. We are still talking to Senators Xenophon and Fielding on their concerns. Once the government has gone through and detailed those matters, clause by clause, with Senators Fielding and Xenophon, we may or may not find agreement. We hope to be able to persuade them to support the government amendments on a range of other matters. We will be putting our case in respect of those. In the available time, if we can turn to clause 2, we can start from there, unless there are other questions.

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

Yes, there are a number of other questions that I wish to pursue. I assume the question in relation to enterprise awards will be answered after dinner. I also asked on notice of the department whether there are any specific clauses in the legislation that put employment levels at the forefront of consideration for Fair Work Australia. I also asked that question in relation to productivity. I got a very detailed answer in relation to the issue of productivity, but, going through the two pages, approximately, of answers—for which I am very thankful—there did not seem to be much in relation to employment levels. It all dealt with the issue of productivity. I think the closest we got was that in one clause consideration must be had for employment costs.

I would have thought that, for any industrial relations regime, employment levels would be at the forefront of consideration. Therefore I am asking: did I miss something before I asked the question about employment levels? If I did miss something, how come the department who answered the question also seems to have missed that? Or, in fairness, how come the minister who answered the question has not been able to point to something in relation to employment levels? Is that part and parcel of the government’s philosophical outlook and ideology—that the issue of employment levels is not a matter for consideration by Fair Work Australia when it undertakes its deliberations in relation to the whole host of matters that it will need to consider?

If officials are getting answers in relation to enterprise awards and employment levels, I will keep moving through the questions that I had placed on notice. My question No. 5 was: what is understood by the term ‘employment record’? I was told, quite rightly, that the term ‘employment record’ is not used in the bill, but ‘employee record’ is. I thank officials for clarifying that, but the answer then indicated that the bill defines ‘employee record’ to mean ‘a record of personal information relating to the employment of an employee, which includes information about’ some things. So it includes those things, and as a result this is not an exhaustive list. That will be a matter for later debate in relation to a union right of entry and the union inspection of employee records. At the moment we seem to have included in the ‘employee record’ the employees’ health, taxation, banking or superannuation affairs and a whole lot of things. I was wondering whether, because the definition uses the word ‘includes’—in other words it is not exhaustive—it could also deal with potential garnishees on wages, child support payments, police records and applications for employment, together with references that may have been provided by third parties in relation to a person’s employment.

I think we were given about 10 or so examples of what the list might include but I do note that ‘employee record’ does not exclude some of the things that I have just mentioned—namely, police record, child support payments, garnishees and references from employees. I am going through it again and I see that it does not exclude any warnings that the employee may have received from the employer which remain on the file. I think that the more exhaustive the list the better, and some of the more controversial areas just do not seem to be on the list. I will see that as an oversight at this stage and not as deliberate, because I am in a very cooperative spirit this evening, but I would be pleased to get a detailed answer to that.

My question No. 6 asked: in relation to the collective bargaining scenarios, in what circumstances could a union not be involved, unless it deliberately did not want to be? I think I was told that that would happen if their employees choose not to be represented by a union in bargaining. If that could be clarified that would be very helpful.

My next question will be of interest, especially at this late stage just before the dinner break. I asked the question: will existing Australian Workplace Agreements be allowed to exist for longer under this regime than they would have under the existing legislation? The answer I was provided with was: the Fair Work Bill 2008 has no impact on existing Australian Workplace Agreements. That is very interesting given the assertion that was made that AWAs were going to be ripped up and that the previous regime was going to be ripped up lock, stock and barrel. It now seems that we have a regime which will allow Australian Workplace Agreements to continue to exist.

Can I also have confirmed—I think this I correct; I have done a quick analysis—that the religious exemption clause that is currently in the legislation in Workplace Relations Act 1996 section 762, is in general terms replicated in Fair Work Bill 2008 clause 485. I assume, Minister, that this is an exemption that only applies to small businesses. If that is the case I was wondering whether the minister could advise us as to why, in the bill, clause 485(1) says:

This Subdivision does not apply in relation to premises if:

(a) no more than—

guess what the number is!—

       20 employees …

That number is very interesting in relation to a future debate that I think we might have around the issue of unfair dismissal and the appropriate number for that.

It would be interesting to have confirmed that this is a direct replication of section 762 of the current regime, which also refers to ‘no more than 20 employees’. We do not argue with that. We just want to ensure that there is a religious exemption in this legislation. In fact, we would commend the government for adopting and accepting the number 20 as being the appropriate number in relation to the religious exemption clause, which only applies to small businesses. I just remind those opposite of that in anticipation so that they can think of some arguments to put after dinner as to why the number in relation to other aspects of small businesses should be 15.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

This is a continuation of setting out some of the circumstances of where we have got to with some of the negotiations. I have dealt with the Greens and I table a letter to Senator Brown for the opposition to have a look at.

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

Did you circulate it?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

No, I tabled it just then. I tried to table it before dinner. It is much easier to table these things so they are on the public record. In addition to the Fair Work Bill 2008 amendments, as I have indicated, I will give a general overview.

Firstly, on flexibility of work for carers of children with disabilities: as we understand it, both the Greens and Senator Xenophon are supportive of that position. Secondly, on time lines for the lodgement of unfair dismissal claims: obviously the government and Senator Xenophon are keen to support an amendment, which will be moved by Senator Xenophon, which extends the period provided in the bill for the lodgement of unfair dismissal claims from seven to 14 days. Given that it relates to a procedural step rather than a substantive right, it is a matter that would assist in that area. Thirdly, on the right of entry and outworkers: the government understands that Senator Xenophon will waive the requirement to provide 24 hours notice of intention to enter for the outworker sector. The government has indicated that it will support an amendment along those lines moved by Senator Xenophon. The Senate committee, as I understand, heard evidence that many operators of outworkers in sweatshops pack up the premises when 24 hours notice of intention to enter the premises to inspect breaches of the act or awards has been given, so it seems to be a sensible amendment.

In the area of right of entry dealing with reasonable suspicion, the government has indicated that it will support an amendment by Senator Fielding that inserts an additional statutory note to make clear that clause 481 covers the conduct of the permit holder misleading the employer where he or she holds reasonable suspicion. In respect of misuse of entry rights and multiple visits, the government has indicated that it will support an amendment by Senator Fielding that will put beyond doubt that repeated right of entry for visits for the vexatious purpose of disrupting a business is grounds for the revocation or suspension of a right of entry permit by Fair Work Australia.

In respect of access to non-union-members’ records, the government has indicated its willingness to support an amendment by Senator Fielding to provide that a union permit holder exercising the right of entry for the purpose of investigating the alleged breach may only inspect documents relating to employees who are not members of the permit holder’s union if that employee gives written consent or Fair Work Australia determines that it should be permitted to do so. In respect of that, we may have to get to that position and see where the arguments are. In respect of the representation issue, the government has agreed to support an amendment by Senator Xenophon to include an additional explanatory note to the provision regarding representation as a further guide to Fair Work Australia.

Dealing with some additional matters, I might have dealt with conscientious objection certificates earlier, but, just to be sure, the government agreed to support an amendment by the Greens to remove clause 485 of the bill. I may have already dealt with the review of the FWA, which is the clause 653 and, of course, the interim review of modern awards. In addition to the review, the government agrees to include in the transitional and consequential bill an amendment requiring Fair Work Australia to conduct an interim review of modern awards after two years, and I might have dealt with that as well.

That is the outline of the circumstances, and the government is keen to get onto the amendments as soon as practicable. There are some matters raised before the dinner break. We have taken a view that there are some answers that are available but we will ensure that we collect all of those so that we can then provide them this evening in one part so that I can then deal with them in one go when I am on my feet. They should not be too far away but there were some matters that will take a little bit of time to get.

I may have misheard the position that you were putting but one of the issues that does get aired in this debate, and it is a matter that has been raised, is that the government were given a mandate by the Australian people at the last election to get rid of Work Choices and implement a fair and balanced workplace relations system predicated on collective bargaining and underpinned by a strong safety net. In doing so, the government’s Fair Work Bill achieves this. The government designed the bill to be the right policy for economic times that might be good or economic times that might be difficult or challenging because we sought to balance both flexibility and fairness. The Fair Work Bill is not designed for one set of economic circumstances. The elements of flexibility and good faith bargaining mean it is responsive to the needs of business but, at the same time, it provides a safety net for working people. They are matters that the opposition were trying to reiterate in terms of some of the disappointment they may have thought that they had in respect of the committee process.

We have had a significant process, including an inquiry by the Senate Standing Committee on Education, Employment and Workplace Relations. That is a substantive committee. I take the opportunity now to thank the committee members for their work. In addition, there are substantive amendments to be moved. There is the Fair Work Bill itself, with its explanatory memorandum. May I add that, in comparison to Work Choices, it is a far more balanced and fair bill. It is more flexible. It provides flexibility for workers, including carers of children with disabilities.

When you look at the size of the Work Choices legislation and the Fair Work Bill, the comparison is stark. The Fair Work Bill has been drafted to ensure that it sets out in plain English the clauses that it is designed to cover. It centres on collective bargaining. Yes, there have been amendments made to the bill. That is not surprising, given the process that the government have undertaken in pursuing a fair and flexible Fair Work Bill. It should not come as a surprise to the opposition that we have accepted and acceded to many amendments to ensure that that spirit is contained within the legislation.

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

Before the dinner adjournment I indicated what we as an opposition would be looking for in our approach to this legislation. One aspect was how it would impact on job retention, job creation and small business. On the other side, we will be looking at whether it will deliver excessive union power.

This evening we have been delivered a letter signed by the Deputy Prime Minister of this country which shows that she is willing to sign away the conscientious objection certificates that have been part and parcel of this country’s industrial framework on a bipartisan basis for decades. There was not a single skerrick of evidence before the Senate committee in relation to this change. There is not a single recommendation in the Australian Greens report, the dissenting minority report of the committee, in relation to this. But here it is being snuck into a three-page letter to the Australian Greens by the Deputy Prime Minister as the very last item. I asked before the dinner adjournment whether we could have a copy of this letter. Unfortunately, the minister could not table it before we had to adjourn. The minister found it and, as was his entitlement, did not provide it to us until we resumed. It could have been handed across the chamber.

What we have in the letter is a clear breach of what has been a bipartisan approach to Australian industrial relations for decades—I would venture to suggest for four decades. If I recall, it was Harold Holt, as minister for employment, who introduced the religious exemption conscientious objection certificate in recognition that there were people in the Australian community who had genuine difficulties with such provisions. For year after year those provisions have remained on a bipartisan basis. You do not get these certificates willy-nilly. You have to get a certificate via the Industrial Relations Commission or, under the new regime, from Fair Work Australia.

Basically what the government, in cahoots with the Greens, are now saying is that religious objection counts for nothing. They are willing to sacrifice one of the fundamental human rights and principles on the altar of more union power. Make no mistake: this is a good example of the changes that are coming into this legislation that breach Forward with Fairness and extend union power wherever possible. When a minister such as Minister Ludwig and the Labor Party support such an amendment, it is a very, very sad day for this country. A 40-year history of bipartisanship in relation to conscientious objection is to be denied.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

What about when you introduced Work Choices?

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

Senator Polley interjects and says that we introduced Work Choices. Yes, we admit our mistake. We acknowledge what the Australian people have said. But there was never an argument about this between us, Senator Polley—between you and me, Labor and Liberal. Throughout the extensive hearings undertaken by the Senate committee into this, at which there was Green representation, this issue was never raised. Even in the minority report it was never raised. But the government is willing to sell its soul in relation to this matter for Greens support to do conscientious objection in the eye. Can I just reflect that it is a very, very sad day in Australian industrial history that that sort of bipartisanship, which has lasted half a century, is now out the window.

However, we on this side rely on the good judgment of Senators Xenophon and Fielding to ensure that this is defeated. It is interesting to note that the minister was able to tell us about deals that have been done or nearly done with Senators Xenophon and Fielding. Good. I just put on the record that Mr Keenan wrote to Ms Gillard and phoned Ms Gillard and offered a similar approach to this legislation to discuss issues. He was completely and utterly ignored by the minister.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

You’re voting against it.

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

Senator Polley interjects and says ‘voting against it’. No, that depends on the state of the legislation. The guarantee that the Australian Greens gave was that, if all these things were to be done, they would then support the legislation. I indicate in relation to our approach to discussions that we thought our greenfields amendments were very good, but the government’s greenfields amendments are even better, so I flag that we will be withdrawing ours and voting for the government’s. If you had approached this in a sensible manner you would have not only had this dialogue with the extreme Greens and Senators Xenophon and Fielding but would have engaged the opposition. And—who knows—if Ms Gillard had been willing to sit down with Mr Keenan, even on the discrete area of the greenfields agreements, we might have got an even better set of amendments than the government’s. We are willing to go through these amendments one by one, look at them and vote upon them on their merits. The reason I picked on the greenfields amendments is that that is one area that has already come to mind where we and the government were of a like mind, but Ms Gillard, because she is so high and mighty, was unwilling to negotiate or deal with the opposition in any way, shape or form. It reflects very badly on her as a minister and, as deputy leader of the government, it reflects very badly on the ham-fisted approach that the government is taking to this legislation.

In relation to the proposed amendments—and I am straying into the amendments, but just to get some broad clarification—the minister is suggesting a separate right of entry regime and a separate set of rules for the TCF sector. Is that correct?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That is correct for outworkers.

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

Thank you very much. It makes the point very well that, for different sectors and for different industries, it is appropriate from time to time to have a separate set of rules. I trust His Honour Judge Murray Wilcox, Professor George Williams and others will see the wisdom of this approach when they deal with the Australian Building and Construction Commission and the unique niche legislation that was deemed necessary for the building and construction industry, just as this government now accepts and acknowledges that you need unique and niche legislation to deal with another sector—namely, the TCF outworkers. I have yet to go through the details of what is proposed, so I reserve the position of the coalition. But it does make a very interesting point that Labor now accept that it is appropriate to have niche and unique legislation for particular areas of industry where particular needs are identified. I just remind those opposite in relation to the Australian Building and Construction Commission that that was found to be necessary as a result of a very detailed royal commission by His Honour Mr Justice Cole, who exposed a culture of corruption in that sector.

To return to the specific questions that I asked before the dinner adjournment, Minister, will the government give a guarantee that no worker will be worse off, no employer will be worse off, no community organisation will be worse off and no consumer will be worse off? Are we to have shared with us in this place any economic modelling that suggests the employment growth or decline as a result of this legislation being introduced? Has any such modelling been done; if not, why not? I would also be obliged if some of the questions I asked before dinner in relation to my questions on notice could be answered.

Can I add to that pack of general questions the following in relation to award modernisation—and I know I am getting into an area of award modernisation where we have specific amendments but the answer may well obviate the need for us to draft other amendments. In the award modernisation process, how often can the default superannuation fund be changed? Is that just every four years or can it be changed by application by one or however many parties? Can it also be confirmed that a number of the so-called modern awards will have or will seek to establish monopoly superannuation funds? I am advised that a monopoly has been awarded in relation to award covered employees in the following industries: textile, clothing and footwear; hair and beauty—one that the minister will understand both of us have a very keen interest in; general retail; fast food; and higher education.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There is always the question that you should research and know the answer to before you deal in that confected tone. In respect of conscientious objection, I take you back a fraction, to around 2002, when it was not Labor that broke the 40 years of agreement over conscientious objection; it was in fact the opposition. They changed the way it would be dealt with and introduced it as a separate term within the right of entry provisions. I remember that occurring, and at the time there was a suggestion that there were some reasons behind why the Liberals wanted to do that. I did not believe that, quite frankly. Some people suggested that there had been donations and all sorts of things, but I rejected that out of hand as not being something the Liberals would have entertained. It does, though, beg the question—and perhaps as to during the evening you can remind me—as to why it was put in the right of entry provisions in 2002 in the legislation and broke what you might call the long history of conscientious objection provisions being in there.

What we have is still reflected in the ability to have other certificates so the conscientious objection, as a more general provision—if I could use that shorthand expression—continues on in this legislation and others. What it does not do is continue on in the right of entry provisions under the new Fair Work Bill—and quite rightly so, when that long history was broken not by Labor but by the Liberals.

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

Why didn’t you flag it in Forward with Fairness?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

You on the other side made it out to be such a significant issue. I was just merely correcting the record to point out to you that from our perspective it is just simply sorting through the provisions to ensure that the Fair Work Bill provided both the flexibility and the balance that Work Choices did not have.

And turning to some of the questions that have been raised, such as whether AWAs would be allowed to exist under this regime for longer than the previous regime, the government has made commitments that all existing types of agreements will continue to operate until they are terminated or replaced by the parties. As for the question of how long particular instruments will operate, that is one for the parties themselves. The details of how transitional instruments will be dealt with will be in the transitional and consequential bill to be tabled shortly.

In respect of the question about the circumstances in which a union cannot be involved in collective bargaining, unless they choose not to be involved of course, it is when the employees decide that they do not want the union to represent them in collective bargaining. At the end of the day it really is the employees who determine who the bargaining representatives will be.

In respect of matters that are raised in relation to what perhaps we could more broadly call the definition of employees’ records, the general question seems to be around the information on matters such as criminal records, garnishee orders and disciplinary matters. The definition of an employee record is the definition from the Privacy Act. It could include these things but, subject to important conditions and amendments, the government is moving to protect the use of information. There are four things that should be noted. First, a union can only access records that are directly relevant to a breach that affects or relates to a union member, and I note that the government has distributed amendments imposing the requirement that the record must be directly relevant.

Second, the government is also moving amendments that mean a union official cannot require an employer to produce documents or records if to do so would contravene a law of the Commonwealth or a state or territory. As set out in the supplementary explanatory memorandum, an example of how this would operate is section 58 of the Child Support (Registration and Collection) Act 1988, which would mean that the information about deductions from an employee’s wages for child support could not be divulged.

Third, the Privacy Act 1988 will apply to information collected by a permit holder and, finally, the government is also moving an amendment to provide strong and unprecedented protections for information collected by a permit holder. This amendment would prohibit a person from disclosing information—not just personal information—acquired by a permit holder exercising a right of entry for purposes other than rectifying the breach. This of course would mean that, even if the permit holder were able to access such information they would face substantial penalties—anything in the order of a maximum penalty of $6,600 for an individual or $33,000 for a union—plus automatic loss of a permit if found to have contravened a provision. This government does take the issue of privacy seriously.

Another question—and I take it to be a more flippant question—was: how many amendments are there as a percentage of the bill? I do not know the precise number. I do know that there are fewer than the 337 amendments that were made to Work Choices. In addition, will there be new enterprise awards in the Forward with Fairness Bill? No, but there will be special provisions dealing with the situation of franchisees in the transitional bill which will be introduced later in the week.

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

Sorry, I didn’t hear that. Is that in relation to enterprise awards?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Yes. It is a question that you asked: will there be new enterprise awards in the Forward with Fairness Bill? The answer is no, but there will be special provisions dealing with the situation of franchisees in the transitional bill to be introduced later this week.

Another of the broader questions concerns the modelling, and it seems to be the economic modelling that the Liberal Party seems to be stuck on. Something I have not seen during drafting before but something that in fact I have warmed to quite substantially is the ability for this bill to set out in the EM substantial information more broadly about the outline of the legislation together with some significant contributions on the regulatory analysis of the bill dealing with key elements of the new system together with the regulatory implications of the system and setting out the consultation that has been had in relation to this. This was sorely missed out of the Work Choices legislation, quite frankly.

It then set out the regulatory analysis, as I have indicated, which goes to something I have not seen in legislation of this nature before. It is a pity it was not included in Work Choices because we might have been able to avoid many of the harsh effects of Work Choices as a consequence if we had seen some of the regulatory impacts beforehand. The regulatory impact, of course, addresses the issue that the Liberals will broadly raise about people being worse off under the Fair Work Bill. They will certainly be better off than under Work Choices. There is no argument about that, quite frankly, when you look at the significant legislation we are putting forward. The bill does not do what AWAs did, which was to rip people off and strip conditions. It provides fair and flexible workplace relations legislation.

You raised the issue—and I think I have dealt with it in part—about new jobs. The bill’s objectives include promoting productivity and economic growth. Of course, if the opposition know another way of underpinning employment growth that is through productivity and economic growth then, quite frankly, I am happy for that contribution to be made. That is the path for increasing employment and to ensure that we have economic growth and that we promote productivity.

The interesting part, which I also found to be quite cute, was where the opposition said the conscientious objection clause equals 20 employees and tried to tie that with unfair dismissals. Immediately I leapt to the position of where you got the 100 from in relation to Work Choices and thought that you had not read your own clause. It was really difficult to see why you were trying to tie it to that. That clause stands alone; it did under Work Choices and it does under this legislation as well—unless, of course, you are suggesting that your 100 was wrong and that you should have chosen 20 originally. It has nothing to do with the issue that we are putting forward. We are putting forward unfair dismissal laws that are fair and practical and will ensure that both employees and employers can work through them objectively. What they will also do is provide small business with a code of conduct that will assist small business employees and employers to operate in a fair manner.

In relation to the superannuation issue the Australian Industrial Relations Commission award modernisation decision essentially maintains the status quo. It does not affect an employee’s right to choose the fund to which their superannuation is paid. All Australian employees continue to be entitled to choose their own superannuation fund. The effect of the superannuation award clause is to provide a default fund into which an employer can pay on behalf of an employee who has failed to exercise their right to nominate a fund of their own choosing. In respect of the right of entry amendments, the government has decided—and I think I might have gone through this but just to be clear—to propose new right of entry provisions which provide that 24-hours notice of entry should not be required when investigating suspected breaches.

The other issue from the opposition, which I found a little bit confounding, was the broad suggestion that you could not have individual circumstances. That is what the Fair Work Bill is all about, to ensure that collective bargaining allows parties to collectively bargain to reach agreement on a range of matters. That is what award modernisation is all about as well. If you look through—and I am sure you have—the Fair Work Bill it is about fairness, unlike Work Choices which was about stripping and slashing conditions and wages of employees and pushing them onto AWAs, which in some of the low-paid areas was really a drive to a lower wage outcome for those employees. I think the Senate Standing Committee on Education, Employment and Workplace Relations had discovered this over the period it examined the statistics in relation to Work Choices.

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

Anybody listening to this broadcast would, of course, take no comfort from the minister telling us that the documents that can be viewed by the union official in relation to an employee’s record are limited to those which are directly relevant. The minister is, in fact, required to answer questions asked of him in a directly relevant manner. I think I have asked three times during these committee stages, before and after dinner, whether he could give a guarantee that no worker would be worse off. I will not ask it again, but I remind everybody that that was the test demanded by the Australian Labor Party of the Howard government and when it failed to respond to that, the union movement and others roundly condemned them. All I say is, we are asking you the same question you asked of us. I look forward to the trade union movement spending copious amounts of money condemning and attacking the Labor Party for not being able to provide that guarantee.

In relation to the copious number of amendments, I could not believe it—the minister used the Work Choices defence of, ‘You guys did it.’ The only reason that I point this out is to highlight the duplicity with which Labor come to this debate. As a former minister I fully accept that circumstances dictate from time to time that further amendments need to be made to legislation. But, of course, when we were in that position we were roundly condemned by the Australian Labor Party. Now that they do it, it is all good—that is the way you do business. Can I say the coalition in opposition accept that. What we do not accept is the duplicity and your affected condemnation whilst you were in opposition when we did it. I just seek to remind you of the double standard that is now staring you so very starkly in the face.

I also asked about whether any modelling had been done and we were taken on a great excursion all over the place to Work Choices and back—into the graveyard where Work Choices is. Senator Ludwig poked it to try to get a bit of life out of it. He tried everything other than being directly relevant to the question: has there been any modelling? I suspect the answer is no. The reason I raise it? Because the Australian Labor Party day after day in this place condemned the previous government for not having done modelling in relation to its legislation. It is not surprising that modelling was not done by either side, but what I do put on the record again is the duplicity with which Labor came into this debate, moving their own industrial relations legislation, being unable to give the guarantees sought of us, having to introduce a whole host of amendments, like we had to, and not undertaking any modelling, as we did not. But, you see, I do not stand here today seeking to condemn you for that. What I do condemn you for is the duplicity and the misleading of the Australian people, because at the last election you had no intention of doing anything different if you won government, and you have shown that now to be the case.

For those who think that there might be some comfort in the term ‘directly relevant’, which the minister used in relation to the right of entry rules, I asked a very direct question about award modernisation and the superannuation funds. I asked: how often can the default superannuation fund be changed? We had no answer to that, but we had an excursion into the graveyard and back as well. I also asked whether it is true that a monopoly fund would be established as a default so that there would only be one superannuation fund mentioned in the award. Once again we had a very excursive answer other than to the question that was asked.

I will not continue to delay the committee, but those listening in and those who ever bother to read the Hansard will see the lack of answers and the incapacity of this government to deal with the many issues that I have raised and that the vast majority of the responses were very condemnatory of us.

I ask: what hour this evening, or indeed tomorrow, can we expect to see the amendments that the government has agreed to with the Australian Greens? I have the conscientious objection amendments here—they have been circulated. It would be very helpful if the minister could give us a timetable in relation to amendments agreed to with Senators Xenophon and Fielding, and any other amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

By way of correcting the record, as I understand it—and maybe I will be corrected—the Liberals did do modelling on Work Choices and refused to release it. We have said in relation to that, of course, that the regulatory impact is within the Fair Work Bill. Be that as it may, I do not want to open up an argument about these matters more than necessary. We do need to get on with the legislative agenda for this evening.

In respect of the default funds in relation to super, as well as specifying a list of default funds, as I understand it, the AIRC has decided to allow an employer to make contributions on behalf of employees to any other fund to which an employer was making contributions on 12 September 2008. That is a matter that the AIRC has made a decision on, and it is, quite frankly, the most appropriate place for those matters to be dealt with. It is the Australian Industrial Relations Commission which can deal with those matters in a comprehensive way.

In respect of the broad issue regarding amendments, apart from those that have been circulated there remain, as I understand it, two minor amendments to deal with Senator Fielding’s concerns. They are not far away, but the remaining amendments are here and this government stands to deal with those seriatim.

To ensure that we have something before the chair, if the opposition do not mind too much I will move government amendment (1) on sheet PJ446 sheet. This item replaces the table in clause 2, setting out when particular clauses of the bill may commence by proclamation. The amendment provides, for example, for clauses 573 to 718 of the bill to commence on a single proclamation day. This is intended to allow the new institutions, the FWA and the FWO, and schedule 1—transitional provisions about early commencement—to be established before the rest of the bill to enable administrative decisions to be taken. For example, it would enable appointments to the institution to be made prior to the substantive functions of the institution commencing. However, the substantive functions of the institution and inspectors’ powers of course cannot commence before the Fair Work (Transitional Provisions and Consequential Amendments) Bill receives royal assent.

I move government amendment (1) on sheet PJ446:

(1)    Clause 2, page 2 (table), omit the table, substitute:

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

The minister has beaten me to the punch in relation to moving the amendment. Could I indicate to the minister that the opposition does not quibble with this amendment. It seems to make sense. However, I do have two other general questions—

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

As do I.

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

right—living in hope that I might actually get an answer, but we will see—in relation to the civil remedies in the legislation and in particular on the right of entry. I understand penalties may be sought by a person affected by the contravention. That means, if you are an ordinary worker, not a union member, who has proof that your personnel file was dealt with improperly, you as the individual aggrieved person would actually have to take the court action against the trade union movement or the trade union official. Could you clarify that for me. What would be the filing cost of such an action, which I understand would have to be pursued in the Federal Court or the Federal Magistrates Court?

Could we also be given an update as to the process of consulting with the Australian Federal Police in relation to interactions with this legislation. That was a matter that came up during Senate hearings and I was told in a written answer that there will be a process of consulting with the Australian Federal Police. You have got to love it—governments are always into ‘processes’. I would just like to know what this process actually entails for the benefit of the Australian Federal Police and what appropriate amendments—whatever that might mean—to the Australian Federal Police Act are being sought to preserve the current arrangements. Basically, Minister, I do not need an answer in relation to the Australian Federal Police matters this evening, but could I be provided with a written and, on this occasion, detailed response and not just be told that ‘appropriate amendments’ and ‘a process of consulting’ will take place. I would like to know with whom you actually did consult and what amendments are actually being considered to ensure that there is no difficulty for people in the Australian Federal Police and state police forces who do a very good job for all of us.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

With respect to the first question, penalties can of course be sought by an inspector, as shown by item 25 on the table on page 435 of the bill—that is, within clause 539. The inspectors obviously have sufficient power to be able to deal with these matters. I think I also have the question on notice that—

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

No—does the individual have to pay for the action?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

We will go to that. Of course, if an inspector can do that work, then logically you could make a complaint and the complaint could be investigated by an inspector, which would be an appropriate way of dealing with it. The inspector can take all the necessary action. Having previously been a inspector myself in a state jurisdiction—

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

So you go to a union official to complain about a union official?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

No—you have missed the point. I was an industrial inspector, a state public servant, who would undertake much of this work—

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

Of course, silly me, with no union background. Silly me.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I was merely, by extrapolation, explaining to you—someone who may not have understood how it works in the real world—that, where public servants provide the service, they are in fact quite good at dealing with the public and complaints and investigation. If we had more time I might have shared some of the difficulties we were confronted with under a Liberal government—and their ability—but I will not go there this evening. In any event, that is primarily where these matters can be dealt with.

The answer you were given about the Australian Federal Police, as I understand it, was that currently the Workplace Relations Act has limited operation in relation to the Australian Federal Police. Section 69B of the Australian Federal Police Act applies the Workplace Relations Act in relation to matters involving the AFP command powers and termination of employment of AFP employees. There will be a process of consulting with the AFP about appropriate amendments to the AFP Act to preserve the current arrangements. As I understand it, that is the area that you wanted a bit more detailed information on. Were you asking about the difference between the state police and the Australian Federal Police? That was the import of the question that you asked. I am just trying to establish whether you were talking about the state police or the AFP.

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

If I may quickly say: both.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Police officers in state jurisdictions, except Victoria, are currently subject to state industrial law. As stated in Forward with Fairness:

Current arrangements for the public sector—

employees—

can continue with many of these workers regulated by State industrial relations jurisdictions.

Forward with Fairness also states:

State Governments, working with their employees, will be free to determine the appropriate approach to regulating the industrial relations arrangements of their own employees …

If that does not provide the answer, we might come back with a more full position.

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

Just briefly on that, I thought there was some thought that state governments might be referring their powers. If that were to occur—as I recall, it was part of the hearings of the Senate committee—state police forces might then have difficulty. I am aware of the current circumstance in relation to state government employees.

As an aside, I was amazed at the number of emails I got encouraging the Senate to pass the IR legislation without delay, and, when you look at the email addresses, they virtually all emanated from state government departments in Tasmania which, of course, are not impacted by the legislation that they complained about. But that is just an interesting aside—I hope it is interesting, Minister! The referral of powers, as I understand it, may have an impact on state police forces. Could that be clarified at some time?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The short answer is that in 1996 Victoria did refer its powers. The remaining states are at liberty to do that. They can undertake that and have those discussions, should they wish to. It is a matter for the states to determine themselves.

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

I have not intervened in the cross-play between the government and the opposition, but I remind both the government and the opposition, firstly, that we have a substantial number of amendments, which we flagged very early in this debate; and, secondly, I will have specific questions on the amendments of both the government and the opposition. I would like to take the opportunity while I can to point out to Senator Abetz that he may care to read the minority report of the Australian Greens a little more closely, because at the bottom of page 182, under ‘right of entry’, we address the matter of conscientious objection certificates.

I have a question for the government about jurisdiction. I will have a host of other questions around specific amendments throughout the debate. The Greens raised the issue of jurisdiction not only in our minority report but also in my speech in the second reading debate. The use of the corporations power originally created a mess under Work Choices, and it continues to through its use under the Fair Work Bill. For example, local government and social and community service sector employees will still have no clarity as to what jurisdiction they are in. This came up in a large number of the submissions to the Senate inquiry, of which—Senator Abetz was right—I was an extremely active participant. This issue also came up in oral evidence. For the social and community sectors in particular, this can change on a regular basis, depending on how much income they receive from what can be characterised as trading activities. At one point they may be in the federal system and at another point in time, potentially, the state system. We believe this is unacceptable, as did the community organisations that raised the matter with the committee.

While we appreciate that the government is working towards a unitary system by the referral of powers, this is not going to help non-federal-system employees in, for example, my home state of Western Australia, where the industrial relations minister, Troy Buswell, has made it clear that the WA government will not refer powers. Minister Buswell has called for individual agreements—that is, AWAs—to be offered as conditions of employment. This came up during the committee inquiry in Perth. Can the government please update us on progress towards a national system, and can the government indicate whether it has considered or is considering a mechanism for state employees to opt into the federal system, similar to provisions in the Industrial Relations Act 1988?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

With all of this, there are some of those tensions that exist when the government is in a clear position and has negotiated and where a state has referred, such as in Victoria. It is quite clear where states have not referred and are in the process of negotiation. A lot of that will crystallise at that point. The short answer is that these are matters that will be worked through, because we are driving for certainty in the fair work legislation. Minister Gillard has raised this issue at the Workplace Relations Ministers Council. All states are aware of the need to resolve these issues to ensure that there is certainty for employees. The opening statements I made about the legislation equally apply to the whole of the chamber—I was not simply having a discussion of the legislation with the opposition. I thank the Greens for participating in the debate this evening. The Greens have been extremely helpful in providing certainty under the Fair Work Bill. They joined in the committee system and provided, though not a majority report, helpful assistance to the committee in its minority report. I understand that the Greens and the government have been able to work through a range of issues, and we thank the Greens for coming to the table in a positive light—unlike the opposition—in respect of many of the provisions of the Fair Work Bill.

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

I thank the minister for his response and his comments on our approach to this bill. He will be aware—as we have made no secret of the fact—that we do not think the bill goes far enough. There is, hence, the range of amendments that we will be moving. We thank the minister and the government for their agreement on the areas where we have managed to reach agreement. I would like to further pursue this issue. I know that we have a large agenda to deal with, so I will not try to hold us up here any more than is necessary to get answers to a couple of extra questions.

There are issues that need to be dealt with as we work through this legislation, but I am not exactly clear from your initial answer how the government intends to deal with these particular issues. As I said, there were a number. Local government were particularly vocal about these issues, as were community based organisations. Given that these organisations have very limited funds and very limited access to funds to support administration, it could potentially be quite a complex system. I am seeking a level of assurance about time lines within which this will be dealt with, how it is intended to be dealt with and, if in fact it is highly complex, whether assistance will be provided to these organisations in order for them to deal with what appears to be quite a significant jurisdictional mess for some of them. This applies to national organisations that work at both a national and a state level and to state organisations that work at a state level but which can engage in national arrangements as well.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Some of those matters and the difficulties that have arisen existed under Work Choices. The Fair Work Bill goes a long way to resolving many of those issues. It provides a significant improvement to Work Choices and it ensures that this government delivers on abolishing AWAs. It is about ensuring that, for those organisations, it is not about cutting conditions from their take-home pay. But, of course, some of the issues will have to be dealt with through, as I indicated, the Workplace Relations Ministers Council, because it is a precondition that the states provide and refer the power. Victoria already has. Many of those issues can be dealt with through the third bill, which is the consequential one, particularly around the Victorian referral. But if states refer all of their private sector then those issues do get, quite frankly, eliminated in the circumstances that you have outlined. One of those issues is, of course, that it does take two parties to move through that. We are reasonably confident that the states have seized on the issues that you have raised and are keen to work with us to resolve them.

The position is far from perfect; we understand that. But we are in a position of moving forward with a fair and balanced bill that includes a range of conditions which will not only underpin the employment relationship between employers and employers but also provide collective bargaining as its focus. An earlier issue that was raised by the opposition related to a particular community based organisation, which I will also have a look at. It depends a lot on the way they have been funded—the nature of their funding and where the funding has come from—as to how they interact with the system, but it is designed to be a relatively straightforward system where they can enter a collective arrangement and come up with an outcome. If you look at the difference between Work Choices and the Forward with Fairness policy and the Fair Work Bill itself, you will see a much more simplified bill with plain language. Parties should be able to negotiate an outcome around a collective agreement which suits their individual circumstances. It is the objective of the legislation to do just that.

That does not give you the strict answer that I think you are seeking, but I assure you that, from our perspective, it is a significant improvement from what the opposition wanted to continue with under Work Choices.

Question agreed to.

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

by leave—I move Greens amendments (1) to (3) on sheet 5729 together:

(1)    Clause 3, page 3 (lines 11 and 12), omit “take into account”, substitute “give effect to”.

(2)    Page 3 (after line 36), after Division 2, insert:

Division 2A—Interpretation of this Act

3A Interpretation of this Act

                 This Act is to be interpreted in a way that is consistent with, and gives effect to, Australia’s international labour obligations.

(3)    Page 3 (after line 36), after Division 2, insert:

Division 2B—Review by the ILO

3B Review of this Act by the ILO

        (1)    The Minister must, as soon as practicable after the commencement of this Act, submit the Act to the ILO Committee of Experts on the Application of Conventions and Recommendations with a request for urgent advice as to the compliance of the Act with international labour standards.

        (2)    The Minister must also provide to the ILO Committee any additional information it requests to assist in its provision of advice on the compliance of the Act, and must cause a copy of that information to be laid before each House of the Parliament within 6 sitting days of that House after the information is provided to the committee.

        (3)    The Minister must cause any response from the ILO Committee to be laid before each House of the Parliament within 6 sitting days of that House after the Minister receives the response.

        (4)    To avoid doubt, the submission of the Act to the ILO Committee in accordance with subsection (1) is additional to the obligations Australia has to report regularly on measures that have been taken to implement ILO conventions.

These amendments relate to the International Labour Organisation, or ILO, obligations. We have three amendments in this series of amendments. Amendment (1) amends the object so that it reads ‘to give effect to Australia’s international obligations’. We note the approach in the bill is weaker than Work Choices, which included the words ‘assisting in giving effect to’ our obligations. With this ALP government, we are deeply concerned that we have even less of a commitment to the ILO conventions than we had with the previous government. Amendment (2) inserts a new clause to require the act to ‘be interpreted in a way that is consistent with, and gives effect to, Australia’s international labour obligations’. Amendment (3) inserts a new division to require the government to submit the legislation, if and when passed by the parliament, to the ILO for advice on its compliance with our international obligations.

We believe a key means of measuring whether an industrial relations system actually provides for fairness is whether it complies with the International Labour Organisation’s core labour standards and conventions. The ILO is a tripartite body, with its standards and policies developed by representatives of governments, employers and workers. The key international conventions are ILO convention No. 87, the Freedom of Association and Protection of the Right to Organise Convention of 1948; ILO convention No. 98, the Right to Organise and Collective Bargaining Convention of 1949; and the UN International Covenant of Economic, Social and Cultural Rights of 1966. The key rights that flow from these instruments include the right of workers to join and be represented by trade unions, to organise and to collectively bargain. The right to strike is also considered an integral part of the principle of freedom of association.

Various submissions to the committee process identified areas of the bill that may breach our obligations, including: provisions that give primacy to enterprise-level agreements and that restrict the level at which bargaining can occur, including the ban on pattern bargaining; provisions that limit the contents of agreements; provisions that give insufficient protection to workers who take industrial action in support of their rights under the conventions; and provisions that restrict the right to strike beyond the limits permitted by the conventions, including provisions relating to secret ballots, termination of industrial action by the minister, the suspension of industrial action due to harm caused by third parties and bans on industrial action in support of multi-employer agreements.

On amendment 2, if the government believes that the bill covers our international obligations then we believe there is no reason to object to this amendment, which has the effect of providing that the legislation be read so as to be consistent with our international obligations. It would only come into use where there is some ambiguity in the meaning of the provision.

On amendment 3, which I remind the Senate is to insert a new division to require the government to submit this legislation, if and when passed by the parliament, to the ILO, we note that in its latest report the committee of experts, in commenting on Australia and the right to organise, requests that the Australian government:

… communicate with its next report a copy of any draft legislation under consideration in the framework of the substantive labour law reform, so as to examine its conformity with the Convention.

I note that the government has been saying that it had not been requested to submit the draft legislation, and the government’s response previously has been that it will submit a copy of the act if and when it is passed. However, as I said, the latest report asks the government to ‘communicate with its next report a copy of any draft legislation’. Of course, it may be too late to submit the draft legislation. We are disappointed the government did not do so before, when it had ample opportunity.

What our amendment does is require the government to submit the final act to the ILO for its consideration of its compliance, as the committee of experts itself requests. I ask the government whether they have looked at these matters and whether they believe the bill is compliant with our obligations. If they believe the bill is compliant then we believe they should have no difficulty with these amendments. And I ask why the bill is not more specific and does not in fact cover the clauses that we have covered. I fail to see why the government have not acted to move such amendments or to include these amendments in their bill in the first place.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will deal with those questions in the best way I can in the order they were provided. I can at the outset say that the Greens have urged the government to submit the Fair Work Bill to the International Labour Organisation for advice as to whether it meets Australia’s international obligations. I can say that due consideration was given to Australia’s international commitments in developing the Fair Work Bill to ensure that the bill is compliant with Australia’s commitments under ratified ILO conventions.

A number of key criticisms of Work Choices that were made by the ILO supervisory body have been addressed within the proposed new system, which has been developed through exhaustive consultation. The ILO committee of experts has asked the Australian government—and the Greens may be aware of this—to provide a copy of the draft legislation. The government is considering the committee’s request and will respond shortly. I note that every year member states are required—

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

Senator Abetz interjecting—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There is a date, though. I would note that every year member states are required to report to the ILO Committee of Experts on the Application of Conventions and Recommendations on their compliance with a range of ILO conventions. Australia’s next regularly scheduled compliance report is due on 1 September 2009 and will include advice of compliance with fundamental conventions, such as the Freedom of Association and Protection of the Right to Organise Convention 1948, which is convention No. 87, and the Right to Organise and Collective Bargaining Convention 1949, which is convention No. 98.

Can I add that, as you may have gleaned from the debate, we are not minded to support your amendments. There is a specific reference to Australia’s international labour obligations in the principal objects of the bill, which is not a feature of the current workplace relations legislation, and it does recognise the importance the government attaches to its international obligations. The government is satisfied that the way in which the objects are currently framed is appropriate. Accordingly, the government will not be supporting your amendments. I will not go into the specifics of each convention, but can I say that due consideration was given to Australia’s international commitments in developing the Fair Work Bill to ensure that the bill is compliant with Australia’s commitments under the ratified the ILO conventions. We are conscious of the commitments regarding international labour standards and strongly support the International Labour Organisation, the ILO, in its objective of promoting decent work for all and raising labour and social standards.

I think I have covered all of the issues that you have raised. If not, I am happy to come back to any that you may still have outstanding.

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

I thank the minister for his answer. I would like to confirm that the government has confirmed that they will send the act, if and when it is passed, to the ILO.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It is a case where it has not actually gone through the final decision-making process. I cannot see any reason why it would not, but of course I cannot second-guess the relevant minister. I am only representing the minister in this chamber, and it would require all of those steps to be clearly gone through before I could make such an assertion.

The comfort level I can leave you with is that I cannot see any reason why it would not. We have certainly been mindful of the ILO conventions in drafting the Fair Work Bill and we have ensured that we have put it in a prominent place within the objects of the bill to give effect to these obligations. The government has taken the ILO conventions into account. It is perhaps best to leave it at that point.

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

I thank the minister. I note that ‘taking into account’ is very different to ‘giving effect to’. Perhaps the minister could take on notice, and confirm before the end of this debate, whether he is minded to send this, once the act has passed—because we are having this debate now and, as I said earlier, it is too late to send the draft legislation—to the ILO. My second question is whether, if the ILO has a different opinion to the government as to whether the legislation meets ILO conventions, the government will then seek to amend it to ensure that it does conform to the various ILO obligations. I would appreciate an answer to that question too, please.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It does seem that we will be here this evening and probably tomorrow as well, so I might see if I can provide an answer to that by the morrow.

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

I would very much appreciate the minister indicating a willingness to, if he could, get the answers to both questions. One is whether the minister is going to send it and the other is whether, if we are right and the government is wrong in terms of it meeting our obligations under the ILO conventions, the government would then be minded to amend the act to ensure that it did meet our ILO obligations.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will take both of those on notice.

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

The Greens nearly won me over with their argument. I thought having to submit this draft legislation to the ILO would be an opportunity for us to adjourn this evening—stop consideration, send it off to Geneva and wait for however many months before it came back! I ask, somewhat tongue in cheek, whether Senator Siewert and Senator Brown have the ILO tick of approval for their proposed amendments—I somehow doubt it.

Can I say to Senator Siewert: call me old-fashioned, as they do, but I happen to believe in parliamentary democracy. I happen to believe that the Australian parliament should be the master of legislation and its impact in Australia. By all means get advisory views from the ILO, but, at the end of the day, we as an Australian parliament should have the absolute right to say, ‘We happen to disagree with this particular interpretation by the ILO.’ The Greens amendment is nearly obsequious to the international convention-making corral that is out there in implying that their knowledge is superior to that of the democratically elected parliament of Australia. Sure, the ILO has an opinion, but I must say that, when you know that people like Ms Burrow sit on it and effect certain outcomes for political reasons, their consideration seems somewhat less robust—albeit there are about as many former ACTU presidents in this parliament courtesy of the Australian Labor Party, but that is an aside. While we should take the ILO’s views into consideration, we should not say in our legislation that we need to give effect to their views, and that is what the Australian Greens are seeking.

One of their amendments states:

This Act is to be interpreted in a way that is consistent with, and gives effect to, Australia’s international labour obligations.

Well, who is going to determine that? That would basically be saying that the democratically elected Australian parliament no longer has the right to determine laws for its people if the ILO, from on high, an unelected body—representatives are appointed to it—determines otherwise. That would completely undermine democracy and the right of Australian people to, through their elected parliament, make the decisions that are the best for Australia.

It will be interesting to see how excited Senator Siewert is in relation to this—I have it on very good authority that the International Labour Organisation considers small firms to be those with fewer than 50 employees. Wouldn’t it make for an interesting contribution to the unfair dismissal and small business categorisation in this legislation if we had to put our hands up and say, ‘We can no longer determine the definition of a small business for Australia because the ILO has determined in general terms that a small business is a business with 50 or fewer employees’?

Interestingly enough, as I understand the figures that are being bandied around in this chamber, we on the coalition side have the highest figure at exactly half of 50—namely, 25—because we believe that that is right for Australian circumstances. Family First I think want it to be 20. I would still like to know what Senator Xenophon is thinking, there in the stalls, but we will undoubtedly find out. We know that Senator Siewert and the government think the number should be 15. But here we have the ILO. If we were to take our cap off to them, listen to everything they say and give effect to all their pronunciations as to industrial relations law, then we might be confronted with having to accept 50 employees as the definition of ‘small business’. I have a funny feeling that that would not suit the agenda of the Australian Greens.

So I just say that sometimes you have to be careful what you wish for. It sounds good in theory but the chances are that both sides of this debate could cherry-pick through the ILO convention and demand changes. Sure, be informed by the ILO, but do not let them have the power and capacity to hamstring the Australian parliament.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I just indicate that I cannot support the Greens amendment. I believe it is appropriate to leave it as is—to ‘take into account’ rather than to ‘give effect to’. I think there are legitimate issues of sovereignty in relation to this. To Senator Abetz—I will put him out of his misery—I say that my position in relation to the issue of an appropriate threshold for unfair dismissals is 20 full-time equivalent employees.

Question negatived.

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

I move opposition amendment (1) on sheet 5739:

(1)    Clause 3, page 3 (line 34), omit “enterprise-level”, substitute “workplace-level”.

This is an amendment to the objects section of the act. It seeks to omit the term ‘enterprise-level’ and substitute the term ‘workplace-level’. The purpose of this amendment is to alleviate concerns raised about the word ‘enterprise’ by replacing it with the word ‘workplace’. The concern is about the lack of definition around the term ‘enterprise’ such that it could be read to mean an entire company as opposed to an individual workplace within a company.

Should an argument ever be had between a union and employer about the scope or reach of a proposed collective agreement, a tribunal may have to have regard to the objects of the act to determine a position. Our amendment assists in supporting an argument that each place will, where a disagreement exists, be able to negotiate terms specific to it instead of the entire company. I remind the minister, as he objectively and actively considers this amendment with an open mind, that on page 13 of the Forward with Fairness policy document the then opposition, now government, told us:

Collective bargaining will be based on bargaining at the level of an enterprise. The well understood definition of ‘enterprise’ will continue and may include a single business or employer, a group of related businesses operating as a single business or a discrete undertaking, site or project. For example, this means a collective enterprise agreement can be made for employees at a warehouse, a chain of shops, a manufacturing plant or a major construction project.

So, clearly, at the time the minister was considering that an enterprise could refer to a discrete undertaking, a site or a project. We say that this would remove any doubt and that the term ‘workplace’ is a lot better and more definitive than the term ‘enterprise’. We believe that that should not be controversial, given the commitment made in Forward with Fairness. The bill, as we understand it, and according to the numerous speeches Ms Gillard gave, is supposed to encourage bargaining at each workplace and ensure that a business can implement arrangements specific it.

I say to the government that if they are genuine about achieving this aim they can clarify this by ensuring that nothing in the bill artificially restricts employees and employers negotiating conditions at a particular workplace. I commend the amendment to the Senate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I understand it we are dealing with division 2, object 3:

(f) achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations.

The coalition have proposed an amendment to the objects of the Fair Work Bill. The amendment would, in effect, replace a reference to ‘achieving productivity and fairness through enterprise-level collective bargaining’ to ‘achieving productivity and fairness through workplace-level bargaining’. We do not support that amendment.

The concept of enterprise bargaining is, quite frankly, longstanding in workplace relations when referring to collective bargaining. Like the Workplace Relations Act, the Fair Work Bill recognises that an enterprise or business can extend beyond just one place of work. In Forward with Fairness, Labor undertook to retain the concept of enterprise-level bargaining—and I underline the words ‘Labor undertook to retain the concept of enterprise-level bargaining’—noting that such bargaining would be available to ‘a single business or employer, a group of related businesses operating as a single business or a discrete undertaking, site or project’. I underlined those words because the Workplace Relations Act 1996, at section 3(b), says:

… ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level …

It is not a new concept; it is a concept that has been around for some time, and we think it should remain. That is why we undertook to retain that concept of enterprise-level bargaining—for those reasons I have enunciated.

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

Just so we get this absolutely clear, the government is saying that ‘enterprise’, for the purposes of clause 3(f) of the bill, does include workplace bargaining on a separate project or a separate site, as detailed on page 13 of Forward with Fairness:

… ‘enterprise’ … may include a single business or employer … or a discrete undertaking, site or project.

In other words, an employer could have a number of sites, undertakings or projects, all of which could be included in the definition of ‘enterprise’. But of course ‘may include’ does not mean ‘needs to include’, and that is why we wanted the clarification with ‘workplace’. I think the point is that, if the government were concerned about enterprise bargaining at the workplace level, they would remove that doubt. I will be interested to hear the minister’s response.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

To be clear, we are talking about an object provision, which is different from going into the specifics of a particular clause within the bill. Nonetheless, if you look at the definitions contained within the Fair Work Bill, it does include the definition of ‘enterprise agreement’; it specifies on page 15 what that means. I do not think I can add more than that to assist, in that we do not think that the amendment you are putting forward is reasonable. The government do not support the amendment. The concept of enterprise bargaining is a longstanding one in workplace relations when referring to collective bargaining. As I have said, it is in the principal object section of the Workplace Relations Act 1996, and it continues to be in this one. That is why we undertook to retain the concept of enterprise-level bargaining.

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

We are being told that ‘enterprise’ has had a well-understood definition for a long time, ever since Howard legislation in 1996—so thank you for that, Minister. But, once again, can I ask specifically whether the government seeks to encourage bargaining at a worksite, project or undertaking level, as referred to in Forward with Fairness. If you are committed to that which is in Forward with Fairness, I would have thought there would be a definition that puts the issue beyond doubt, and the worst that could be said of our amendment is that it is belts and braces. But to see the government’s opposition to it is, I must say, interesting, because no real argument has been put to us. If you support the idea that bargaining can occur at the level of a project, site or undertaking, then there should be no opposition to this. I would have thought that would be very plain. I would be very interested in hearing the minister’s explanation. I remain open-minded on this; if the minister can convince me that legally, technically, this would somehow undermine the integrity of the legislation, I would be happy to reconsider, but at the moment it just seems to be an obstinate approach because it happens to be an opposition amendment—and, if it is that, then I will consider what we do when the matter gets put to a vote.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It seems the true colours of the opposition are coming out, with threats and the like. In Forward with Fairness, we said Labor undertook to retain the concept of enterprise-level bargaining. We have done that in the objects of the bill that we are putting forward. We have noted that such bargaining would be available in ‘a single business or employer, a group of related businesses operating as a single business or a discrete undertaking, site or project’. That is clear, that is in the objects and we do not see any merit in amending the clause in the terms that the opposition have put forward. The amendment that has been suggested would replace a reference to ‘achieving productivity and fairness through enterprise-level collective bargaining’ with ‘achieving productivity and fairness through workplace-level bargaining’. ‘Enterprise-level bargaining’ is a term that has longstanding meaning within the industrial relations area. It is one that has been in legislative objects before. We think that, for consistency and for the reasons I have already outlined, it should remain.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Can I just ask the minister a question in a similar vein to Senator Abetz’s question. If the word is changed from ‘enterprise’ to ‘workplace’, how would that prejudice workers in a particular workplace or prejudice an employer? I have a similar question for Senator Abetz. To what extent does Senator Abetz say that this proposed change would make a difference to the rights, entitlements and process with respect to both employees and employers? Does Senator Abetz concede that, given that the phrase ‘enterprise-level collective bargaining’ has been well accepted, you may be opening up a level of uncertainty by using the term ‘workplace’?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Perhaps I can respond in a narrow way. They are not interchangeable terms. A workplace could be a defined place, whereas an enterprise could be a Commonwealth department that deals with a range of different workplaces right across the board. So to use ‘workplace’ would be narrowing the term, in my view. Using the term ‘enterprise’ would allow a single business or employer or a group of related businesses operating as a single business or a discrete undertaking of a project to have bargaining at that level. ‘Workplace-level bargaining’, without labouring the point, is a narrower phrase. Therefore, it could be construed to refer to a smaller area or a geographically defined area. A workplace is a physical location—perhaps that is one way of putting it—whereas an enterprise is a business or its activities, such as a Commonwealth department or a company with, for argument’s sake, five separate workplaces.

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

I may be able to help in this. There is some merit in the workplace definition as well as the enterprise definition. Can you have ‘and/or’? I can see an argument being put forward for that. Then the emphasis is not just on ‘enterprise’ and it does not exclude or preclude ‘workplace level’ in that definition. So you would have: ‘achieving productivity and fairness through an emphasis on enterprise-level and/or workplace-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action’. I wonder whether that might help.

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

I would be quite amenable to such an amendment. Throughout the bill I think there is an emphasis on ‘enterprise-level bargaining’. However, bargaining at the workplace level, whilst lip-service was given to it in Forward with Fairness, did not really find its way either into the objects or further through the bill. It may come to the point of Fair Work Australia having to make a determination as to what ‘enterprise’ might mean in a particular circumstance. That is why we wanted to make it clear that the smallest level would be the workplace level and then you would build up to enterprise level et cetera. However, if Senator Fielding were to be comforted by the insertion of the words that he suggested, I would be amenable to that. That would make it quite clear that workplace-level bargaining is acceptable.

Can I say in response to Senator Xenophon: yes, I can see scenarios where, if you did not specifically allow for workplace-level bargaining, you could have huge prejudice towards both the employee and the employer. In the starkest situation you could find that nobody had a job and the business was not able to undertake its enterprise at all. A hypothetical example might be if you had a mine way out in the middle of nowhere and one right next to a city—hardly likely, I know. The chances are that to attract workers to the one way out in the outback you would have to have a workplace agreement which would pay higher wages than were received by those who might be able to drive to the work site from their home within five minutes each day. So if you had a big mining company with two mine sites, to say that they have to have the same employment arrangements for vastly different circumstances because they are an enterprise could well prejudice the enterprise’s capacity to undertake another operation.

Of course, keep in mind that at all times workers will be protected by the safety net. I understand that casual workers in the hospitality sector get paid substantially more if they live and work in Sydney, given the cost of living et cetera, than they do in rural and regional towns not only in Tasmania but all around Australia. If somebody were to have a number of restaurants around Australia, one in Sydney and one somewhere else where the cost of living was cheaper, the wages that could be commanded in the middle of Sydney would have to be translated into the rural or regional area, making that business unsustainable. That would mean that the worker would not have a job and the enterprise would not be able to operate.

So I think it does make sense to try to allow for separate workplace agreements, if that is necessary, and split up an enterprise for that purpose. I think Senator Fielding has provided us with a very good opportunity to get the best of both worlds. Of course, we as a coalition have no problem with enterprise bargaining at the enterprise level if that is relevant, but we also want to make absolutely sure that, when Fair Work Australia comes to interpret this, there is a recognition of the need to also consider the workplace situation. If I might invite Senator Fielding to move his proposed amendment to my amendment, I can indicate our agreement.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Just let me deal with some of the positions you have put, first, and perhaps we can dissuade Senator Fielding from doing such. It is, as I have said, an object of this bill; it is not a specific clause. So with regard to this trip into worrying about regional and rural as against Brisbane and Sydney or as against Brisbane, Sydney and Cunnamulla, for argument’s sake, there is nothing in this Fair Work Bill that provides that you cannot make a geographic agreement for a particular area. What this object does is simply to provide an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations. This is an objects provision. It does not say that you can only have enterprise-level industrial relations across your enterprise and they have to have the same provision for every part of the enterprise, across the Commonwealth government or the department. There is obviously an award which underpins it, plus agreements, and then there are individual arrangements within those, and then there are different shift provisions that might apply across different parts of a particular enterprise. All of that will continue to go on, depending on the particular geographic location, the nature of the enterprise and the nature of the business within the enterprise that is being undertaken.

Can I indicate more broadly—because I can see we are getting stuck on a particular object itself—that the first position I would put would be to say it is unnecessary; it is encapsulated within the current provision. But if it is thought that it is a matter you would like the minister to have a further look at, then the position I would put would be to persist with the present position, because I think it is the most sensible; and should it be amended then, given the nature of the amendment, I suspect it will come back as a message and that will give the minister an opportunity to consider that particular provision again. Of course, all of that would mean we might want to negotiate a bit further with Senator Fielding about some of these matters too, if he feels wedded to them.

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

Can I briefly respond. What the minister says is right—but, when there is a dispute, the courts do have cause to look at the objects clauses to help them decide what the intent of the legislation is. The clause we are talking about says ‘achieving productivity and fairness through an emphasis on enterprise-level collective bargaining’—I repeat: ‘an emphasis on’. So somebody from Fair Work Australia or the Industrial Relations Commission, in trying to come to grips with this, will say, ‘The people in the Australian parliament, the legislators, wanted an emphasis on enterprise-level.’ What the coalition would seek is to insert the word ‘workplace’—that there be ‘emphasis on workplace’. Of course, Senator Fielding very neatly says that you can have emphasis in relation to both, and I think that more accurately reflects what we as an opposition were thinking and wanting. We do not mind an emphasis on enterprise-level bargaining, just as long as workplace-level bargaining is not therefore somehow interpreted as being a second-order issue. I think the worst the minister came up with was that it was ‘unnecessary’. If it is unnecessary, one would hope it would not do any harm—and, who knows, this could be the double dissolution trigger that Mr Rudd has been looking for, but I hardly think so. I commend Senator Fielding’s suggestion to us.

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

I would like to amend what has been proposed so that the objects of the act will read: ‘Achieving productivity and fairness through an emphasis on enterprise-level and/or workplace-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action.’ I think that puts the emphasis where it needs to be, on workplace and enterprise. I think it reaches a good compromise. The objects are very important. I do not think we should not look at these things. It is important that we get the balance right between workplace level and enterprise level. They are two different things. Having that emphasis upfront allows everybody to interpret it through those eyes all the way through. I move:

Omit “workplace-level”, substitute “enterprise-level or workplace-level”.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I have said all I am going to say about that, but can you not use ‘and/or’? I think ‘or’ would be more technically correct. I am sure the clerks around here might agree with my use of English in this place.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate briefly that I cannot see that the proposed amendment by Senator Fielding will do any harm and it may provide some clarity. I note this part of the Forward with Fairness document does refer to a definition of enterprise to include a single business or employer, and I would have thought that it is not inconsistent with that and that it will not prejudice either the rights or the processes of employers or employees. So I am minded to support Senator Fielding’s amendment.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The question is that Senator Fielding’s amendment to the opposition’s amendment (1) on sheet 5739 be agreed to.

Question agreed to.

The Temporary Chairman:

The question now is that the amendment, as amended, be agreed to.

Question agreed to.

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

by leave—I move opposition amendments (6) to (15) on sheet 5739:

(6)    Clause 6, page 6 (line 10), omit “independent contractors and”.

(7)   Clause 12, page 18 (lines 10 and 11) definition of industrial association, omit “or independent contractors, or both,”.

(8)   Clause 12, page 18 (lines 14 and 15) definition of industrial association, omit “, or independent contractors, or both”.

(9)   Clause 12, page 18 (lines 17 and 18) definition of industrial association, omit “, or their interests as independent contractors (as the case may be)”.

(10) Clause 12, page 18 (line 21) definition of industrial association, omit “and/or independent contractors”.

(11) Clause 12, page 26 (lines 20 and 21) definition of registered employee association, omit “or independent contractors, or both,”.

(12) Clause 12, page 30 (line 31) definition of workplace law, omit paragraph (c) of the definition.

(13) Clause 194, page 183 (line 13), at the end of the clause, add:

      ; or (h)    any matter that restricts, controls or dictates the use or non-use of independent contractors.

(14) Clause 342, pages 297 to 298 (table items 3 and 4), omit the table items.

(15) Clause 342, page 298 (table item 6), omit the table item.

I think that it makes good sense that we deal with these as a job lot. A number of amendments were required but the idea of these amendments is to alleviate concerns. The increased number of references to independent contractors in the Fair Work Bill 2008 signals a future move to include this area of law within the sphere of workplace relations.

To us the overwhelming theme is that workplace relations law is industrial relations law. It is specifically about the governance of relationships between employers and employees. It is totally different from commercial law because the relationships between employees and employers are governed by different sets of rules and it is agreed generally in the law that the commercial relationship of independent contractors should be seen as being commercial law. So for the purposes of clarity and consistency, commercial law and industrial relations law need to be kept distinct, different and separate. Where either intrudes into the other’s jurisdiction, significant confusion is created for both employment and commercial undertakings within the community, and that can harm both economic activity and the rights of parties. The Fair Work Bill displays some inconsistency in some places in terms of definition and omission. The sham contractor provisions within the existing act are retained in the bill and we of course support that remaining the case.

I should also point out in support of these amendments that Ms Gillard was quite clear in relation to independent contractors. For example, she is on record as saying:

Labor’s policy is that independent contractors are small businesses that should be regulated by commercial law and not industrial law.

                   …         …         …

Federal Labor has also publicly clarified our position … As we have stated publicly, under Labor it will not be lawful for agreements to contain clauses which … prescribe that contractors be engaged or not engaged on the basis of … industrial arrangements.

                   …         …         …

Federal Labor understands the importance of independent contractors and small businesses to the Australian economy.

That was a letter written by the then shadow minister on 1 October 2007 to the Executive Director of the Independent Contractors of Australia. It is quite clear. It was a commitment before the election in relation to ensuring that independent contractors did not get tangled up in industrial legislation. We unfortunately have that here now in what is being proposed. Ultimately it means that independent contractors will be caught up in the industrial relations regime, which we know is something that the trade union movement in particular has been seeking for some considerable period of time. Our amendments are not inconsistent with Forward with Fairness in any way, shape or form and they are consistent with the commitments made by the then shadow minister and now minister. We commend this raft of amendments to the Senate to protect small businesses and independent contractors.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I am surprised sometimes by people who make bold predictions about what they are doing and not doing. Quite frankly, I think it is a case of the opposition cutting off its ideological nose to spite its face. If you try to remove references to independent contractors from various parts of the Fair Work Bill 2008 it does the opposite from what your intention is. It actually reduces the protection for independent contractors, removing protections that have existed for a considerable time in federal workplace relations legislation.

I can make two points about this proposal to remove independent contractors from the definition of industrial association and registered employee associations. The first point is that these definitions reflect the fact that many unions and employer organisations have independent contractors as members. Indeed, it is specifically provided under schedule 1 to the Workplace Relations Act that organisations registered under the act may include contractors. The second point I want to make is that the definition ensures that independent contractors cannot be discriminated against because they are members of an industrial association. For instance, the definition of an industrial association would mean that a person was protected from various forms of adverse action because they were a member of the Independent Contractors Association.

This leads me to an area that would concern me greatly if this amendment were passed. These amendments would remove various items in the definition of adverse action that apply to independent contractors. I can provide an example to show how this would not work and, in fact, would create an absurd situation. It would mean that an independent contractor who was refused a contract with a head contractor because he was not a union member or a member of a particular union would have no recourse. I do not think this is what the opposition really intends to give effect to.

The government is committed to freedom of association and to protection for both employees and independent contractors and for that reason on its own—although I do not know why the opposition would be minded to want it—we would not support the amendments. Of course there are a range of amendments but within amendment 13 the opposition seeks to make any terms that relate to the use or non-use of independent contractors unlawful in enterprise agreements. The government has made it clear that employers and employees should be able to include any term they wish in enterprise agreements made under workplace relations legislation, provided those terms remain connected to the employment relationship. When you look at the court decisions in this area they have previously found that some terms in industrial instruments relating to the use of contractors are connected to the employment relationship. For example, terms could be included in agreements relating to safety inductions for independent contractors or could provide that an employer must not undercut employees’ terms and conditions through the use of independent contractors.

On the other hand, a blanket restriction on the use of independent contractors would not be permitted. You could not do that. The opposition have not looked at the consequences of the amendments and I have provided an example of that. The opposition were concerned about how independent contractors might relate in this area and I have provided an explanation as to why they do exist in this area. Of course it has to be connected to the employment relationship and I have provided some examples of how that operates.

The government believes the opposition is wanting to write its Work Choices laws back into the legislation. The government’s position on terms in industrial instruments about the use of contractors simply reflects what has been allowed in instruments for well over 100 years and before the opposition’s changes. The telling point is that the amendments would effectively lessen the ability of the protections that an independent contractor would have with the head contractor, and I think that summarises the position. Nothing in the bill regulates terms and conditions of independent contractors, except for outworkers and obviously we will go to that some time this evening or tomorrow, and these only alter freedom of association provisions. I would ask the opposition to withdraw their amendment.

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

We will not be withdrawing our amendments and we believe that there is a very strong argument to continue to pursue them. You always know when the minister in this debate is struggling to find an argument because he takes a little visit to the graveyard and kicks around the corpse of Work Choices to try to strengthen his argument. But the simple fact is the opposition are looking forward. It is very interesting that the minister should suggest that, somehow, our amendments are reaching back into the graveyard to a corpse. I would be very interested, and I know it is a very busy time trying to get around all the amendments, if Senator Siewert and other honourable senators could listen to this:

National policy for protection of workers in an employment relationship should not interfere with true civil and commercial relationships, while at the same time ensuring that individuals in an employment relationship have the protection they are due.

I could nearly do a ‘who said it’ on this one. And another ‘who said it’ states:

Self-employment and independent work based on commercial and civil contractual arrangements are by definition beyond the scope of the employment relationship.

Was that John Howard’s Work Choices? No. It was Senator Ludwig and Senator Siewert’s beloved ILO in resolutions of 2003 and 2006. Even the International Labour Organisation as recently as a few years ago said it is vitally important—they can see the sense in this—to separate out independent contractors from the employment relationship. By Senator Ludwig deliberately using the ruse that independent contracts somehow need protection of the industrial relations regime, he is by implication putting them into that regime and involving them in industrial relations law when even his beloved International Labour Organisation—and it is not often that I am reduced to quoting them—contradicts him. Senator Siewert, if we were to pass the amendment that you suggested earlier that we should give effect to—not just consider but give effect to—ILO recommendations in this legislation, there would not be that sort of reference to independent contractors. Even the ILO says that that is a sensible way forward.

Senator Ludwig spins the argument that independent contractors need this protection and that protection and it is all about helping independent contractors. Guess what? Independent contractors submitted to the Senate Standing Committee on Education, Employment and Workplace Relations committee that they did not want Senator Ludwig’s protection. They specifically submitted that they did not want to be entangled in this regime—and that is why we are moving these amendments.

As I said at the outset, the three benchmarks for us in considering this legislation were its effect on jobs, its effect on small business and whether it delivered excessive union power. What we are seeking to do here is to ensure that the small business independent contractor sector is disentangled from the regime, which will see it become more and more entangled if the current clauses are allowed to stand. So in support of independent contractors and in support of small business I commend the amendments to the Senate.

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

I have had representations from independent contractors as well. Given that the opposition moved this amendment, are there a couple of examples that they can give of how, if the bill were not amended, it would damage independent contractors?

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

I start by recommending to Senator Fielding the submission of the Independent Contractors of Australia dated 9 January 2009 to the Senate Standing Committee on Education, Employment and Workplace Relations inquiry into the Fair Work Bill 2008. At the very end of their submission they have placed a number of suggested amendments—and we confess we engaged in a degree of plagiarism in relation to these amendments. So we are confident that the independent contractors actually want these amendments. Whilst I heard Senator Ludwig say that he is really out there to protect the independent contractors, when faced with a choice between accepting the word of a government that unfortunately has shown a predisposition to support increased union power in a number of areas and listening to the independent contractors as to what is best for them—guess what?—I am going to side with the independent contractors.

In their submission, the independent contractors say:

The reference to independent contractors is inappropriate because it suggests that independent contractors are within the scope of the legislation.

Further on they say that a definition is needed:

… to reflect the fact that independent contractors can operate through partnerships, trust or company structures.

The submission is very detailed and we believe that independent contractors should be subjected to commercial legislation. Even the ILO agrees. I honestly thought it would be a no-brainer, given the most recent determinations out of the ILO in 2003 and followed up in 2006, that the government would be supportive of this, especially given that, chances are, the independent contractors are a more representative voice as to the needs and aspirations of small businesses involved in contracting than the government is.

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

To follow up on that, I have had the same representations and I am concerned that the government has not addressed the question of why it thinks independent contractors do not want what they have actually asked for. Would the government put forward its case on why independent contractors associations say one thing and then the government says it is going to protect them. How do you reconcile the two?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The short answer is that I do not know how the opposition have managed to get it so wrong. The point I am making is that this was a matter that was introduced by the opposition into freedom of association legislation to provide protection for independent contractors from, dare I say it, industrial associations or organisations. It is a matter that the ABCC rely on when they pursue industrial organisations which may have breached the freedom of association provisions by trying to deal with independent contractors. The real question, though, in dealing with this is: have any independent contractors made submissions that they want less protection than is currently provided for under the existing legislation? I do not think so.

I am not certain that they have actually worked it through. I have provided a summary of what could happen if it were removed. It is quite telling in itself that by removing that protection you could effectively end up with circumstances whereby independent contractors may have no recourse under freedom of association legislation. Nonetheless, this government is committed to freedom of association protection for both employees and independent contractors. I think there is a need for both.

What the opposition are suggesting is that we remove independent contractors from that so that there is, in short, no protection for them in this legislation. In all fairness, I think they have confused the issue. The legislation does not regulate independent contractors’ terms and conditions. For independent contractors, except as I indicated earlier for outworkers, it only relates to the area of freedom of association. It is a sensible position. What the opposition are putting forward is not sensible and exposes independent contractors to matters that the ABCC have been chasing unions down for, utilising freedom of association legislation to do just that. It is a quite unique position that the opposition are now putting forward. It seems to be that they have abandoned independent contractors to the jungle.

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

Senator Ludwig has touched on one of the issues that I wanted to raise in this debate. The Greens will not be supporting these amendments. We believe this is basically an attempt to remove independent contractors from the bill, which is what Senator Abetz has in fact said. We do not think there is enough regulation for independent contractors in the bill as it is. The provisions removing independent contractors from the definition of industrial association is a breach of freedom of association. While Senator Abetz has selectively quoted from ILO conventions, he in fact has not addressed the issue—the fact that this is trying to exempt them from the issues around breach of freedom of association.

Amendment (13) makes terms regulating independent contractors unlawful. We see that as a return to Work Choices, by further expanding what can and cannot be agreed to and included in agreements. This is contrary to the freedom of contract and contrary to the Greens’ position that employers and employees should be free to negotiate any matters in their agreements. We support the provisions of the bill, including adverse action against independent contractors by principal contractors. In fact, we would like to have seen unfair contracts jurisdiction in this bill. We do not believe that these amendments improve the bill and will not be supporting them.

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

If I may say, that does not come as a surprise. The Greens are not necessarily known for their consistency. Despite the ILO resolutions in 2003 and 2006 specifically saying that there should be a disjunct between commercial law and industrial law, we conveniently ignore that and overlook that.

Just in relation to our very first amendment in this tranche, if you go to page 6 of the bill, there is the heading ‘Rights and responsibilities of employees, employers, organisations etc’. Anybody would be forgiven for thinking that that was dealing with the heart of industrial relations law. It then says:

Chapter 3 sets out rights and responsibilities of national system employees, national system employers, organisations and others (such as independent contractors …

So we are interweaving independent contractors and enmeshing them with employer and employee relationships, which the law has consistently said should be separate. What is more, we can even quote the ILO in support, but we do not get actual engagement in relation to that aspect.

In the other aspect that we move—and it is interesting, isn’t it?—we talk about protecting. This is Senator Ludwig’s argument: he really wants to protect independent contractors—he loves them dearly—and says we are going to be doing them a great disservice with these amendments. Let us have a look at our amendment (13). The government opposes where we would seek to add another clause referring to unlawful terms, where we suggest an unlawful term. It would read: ‘A term of an enterprise agreement is an unlawful term if it is any matter that restricts, controls or dictates the use or non-use of independent contractors.’ The government is opposing that amendment. In other words, they believe it is appropriate for an enterprise agreement to restrict, control or dictate the use or non-use of independent contractors—once again enmeshing independent contractors into the industrial relations regime.

I know where this opposition comes from. It is not from the ILO and it is not from common sense; it is from the TWU. It is quite clear. Everybody knows that there has been an ongoing issue there and that the TWU are seeking more to influence independent contractors in the trucking sector. That is the only rationale. Once again we say that our amendments—and we are unapologetic about this—are supportive of small business and supportive of independent contractors, yet the government are still paying off their $30 million fund from the trade union movement from the last election and are therefore putting into this legislation clauses that will in fact help and support the union movement, in circumstances which, as I have said before, even the ILO says should not occur. I commend the amendments to the chamber.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am a great believer in the sovereignty of our laws and I do not know whether I want to rely so heavily on the ILO. Can Senator Abetz confirm if he is moving the amendments as a whole or individually?

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

By leave, I moved them all together; however—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Cherry-picker!

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

should Senator Xenophon wish to cherry-pick, depending on how he wishes to pick those cherries, an inconsistency might arise. I submit that it would be his right—and I encourage him to exercise that right should he so desire—to deal with each amendment separately on the vote. Chair, you might be able to give us some guidance in relation to that.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I thank Senator Abetz but, as a preliminary matter, does Senator Abetz consider that amendment (13)—that is, the amendment to clause 194, page 183, line 13—can stand alone compared to the amendments (6) to (12) inclusive? Further, in respect of amendments (14) and (15), does he consider them to be contingent upon or dependent upon the other amendments (6) to (13)?

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

I will quickly look at those tables, but amendments (6) to (12) can be said to be a discrete area. Amendment (13), I believe, can be a stand-alone amendment. I am now turning to amendments (14) and (15). As I read it—and I was just having confirmation provided to me—amendments (14) and (15) stand together, albeit separate from (13). It would be inconsistent to say you support amendment (14) but oppose amendment (15). Amendments (6) to (12) should be seen together, amendment (13) can be seen separately and amendments (14) and (15) should be seen together.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I am grateful to Senator Abetz for that explanation; it is as I thought. Perhaps we could deal with amendments (6) to (12) initially. My training is as a suburban lawyer—I did not specialise in IR—but in my reading of the amendments I do not see the sinister connotations that the opposition does in respect of amendments (6) to (12). My reading of those is that they relate to rights of standing with respect to national system employees and national system employers, organisations and others such as independent contractors and industrial associations. You may have an association of independent contractors, for instance. As distinct from any commercial relationship that they have with another entity, independent contractors can be employers in their own right, and I do not see that as sinister in any way. More importantly, I cannot see how the various clauses in which the opposition seeks to delete reference to independent contractors in any way regulate terms and conditions of contractors. I do not think that by any interpretation they would do that.

The issue of amendment (13) is another matter altogether, and perhaps that is something that could be dealt with separately. Is Senator Abetz prepared to consider the comments made—that the bill itself does not regulate terms and conditions of contractors in respect of the clauses from which the opposition is seeking to delete the reference to independent contractors and that it cannot by any reasonable construction be seen to regulate the terms and conditions of contractors in respect of amendments (6) to (12)? The issue of amendment (13) is another matter, which I invite Senator Abetz to deal with separately. I would be grateful if Senator Abetz could indicate whether he is prepared to have amendments (6) to (12) dealt with separately. I would also be grateful if Senator Abetz could enlighten me: I cannot see how this in any reasonable construction would regulate the terms and conditions of contractors or affect their rights by virtue of the clauses in which the opposition is seeking to delete the term ‘independent contractors’.

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

It is not only up to me in relation to these amendments; it is the right of every senator to seek to have a question put individually. I am more than happy to do that—albeit somewhat disappointed, because I think I know the consequences if we were simply to put amendment (13) by itself. I will not quite give up on Senator Xenophon for amendments (6) to (12).

I would, for example, point him to amendment (7). The bill states:

industrial association means:

(a) an association of employees or independent contractors, or both, or an association of employers …

In other words, the government is already talking here about an association of employees or independent contractors or both, enmeshing them together in the draft of the legislation and saying that this is quite possible, quite acceptable. It is something that the Transport Workers Union’s pen, quite frankly, is all over. You can call me paranoid, you can call me cynical, and that might be fair enough. But in relation to this, I suggest to you that it is borne out of bitter experience by the independent contractors and that is why they are so anxious for these amendments to be made.

Of course, if we are calling them ‘industrial associations’, it means that we believe that they are part of the industrial relations fabric and framework, and we are therefore once again merging or blurring the lines between commercial law and industrial law. I know, Senator Xenophon, you and I are in heated agreement that we believe in national sovereignty. But if even the International Labour Organisation comes down on our side on this one, I think it is a pretty strong argument and something that I would still commend for your attention.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The difficulty which we are now facing is that in both of those amendments which relate to the issue of independent contractors being effectively removed from the freedom of association protections for both employees and independent contractors—that is, the earlier parts of those amendments—the point is well made: the opposition are misguided and misinformed about what the true effect would be in respect of those. In relation to the second part, from amendment (13) onwards, it is always the case that I would urge caution when addressing these amendments in part, because of the unintended consequences that some of them may have. I have not had an opportunity to examine whether, if the second part were passed, that would have any implication for outworkers themselves, but we will work that through.

We would urge caution in respect of trying to split what are poorly drafted amendments which do not achieve anything and which, in fact, do the reverse and deal a blow to independent contractors on a number of fronts. It deals them a blow, firstly, in relation to removing their freedom of association and, secondly, in relation to amendment (13)—if I could call them more broadly those issues that relate to the prohibited content for agreements and terms restricting the use of independent contractors. The opposition in those amendments seeks to make unlawful in enterprise agreements any term that relates to the use or non-use of independent contractors. The point I make in relation to that is that it is clear a blanket restriction on the use of independent contractors could not be permitted, but there is a margin where independent contractors have a role in industrial relations. For example, terms could be included in an agreement relating to safety inductions, as I have said, for independent contractors or providing that an employer must not undercut employees’ terms and conditions through the use of independent contractors.

If we allow that amendment to get up we could allow employees in a workplace to be undercut by terms and conditions of independent contractors; alternatively, safety inductions for independent contractors may, in fact, not apply to a site or an enterprise. The amendments, in terms of dealing with concrete examples, have not been worked through and considered in detail. The examples that the opposition has put forward do not give me any comfort that they have worked through them to ensure (a) that there are no unintended consequences, (b) that independent contractors will not lose protections that they would otherwise have under the earlier amendments and (c) that, in respect of those latter amendments, they will not in fact be used to drive a wedge into enterprise-level negotiations or agreements that already exist between employees and employers. I indicated earlier that it could also impact on outworkers as well.

I urge the chamber not to accept the opposition’s position that they can cherry-pick through their amendments and try to garner support across the chamber for ones that they have not thought through in their entirety. I demonstrated that clearly at the outset with some of the examples I used regarding the freedom of association provisions and the provisions dealing with the terms of industrial instruments under amendment (13). There are holes in these opposition amendments that you could drive a bus through—amendments that they have copied down off the back of a submission. They have not relied on the ability to talk to independent contractors and see how they would be affected should these amendments get up. What I am concerned about is that we might see Independent senators seeking to agree with them in part because they might be minded to like that particular term but without understanding the consequences of what would happen in isolation. I ask this chamber to reject the opposition’s assertions and their amendments.

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

I will give it one last go in relation to Senator Xenophon and amendments (6) to (12), and I refer him to amendment (12). What Labor have snuck into this legislation under the definition of ‘workplace law’ is: ‘(c) the Independent Contractors Act 2006’. As I have said before, they are deliberately blurring the distinction between independent contractors being covered by commercial law—something the ILO acknowledges, and common law has recognised for a long time—and workplace law. They are now deliberately saying the law that applies to independent contractors will be part of the workplace law regime. Be under no misapprehension what Labor are trying to do with this regime. That is why the independent contractors, and we who unashamedly are on the side of independent contractors, are saying they should be disentangled—because it breaks a tradition of, I think, over 100 years of law in relation to independent contractors and is something that is now being recognised worldwide. I make that point as strongly as I can.

I will not delay the chamber further in relation to amendments (6) to (12). But if you needed proof positive as to what the Labor government are trying to achieve by putting ‘independent contractors’ throughout, it is shown at the very end in their legislation, which we are trying to amend. They are saying workplace law includes the Independent Contractors Act. The Labor Party have made their intention as clear as they possibly can. It is very blatant and it is something that will be to the detriment of small business and independent contractors, who at the end of the day are the engine room of employment and aspiration in this country. We on this side make no apology that we seek to champion their cause, as opposed to Labor’s agenda, which is in fact to bring them under an employee type relationship and arrangement, as witnessed by the other clauses in the legislation.

Having said that, I still commend amendment (13) on its own to Senator Xenophon, if that is all we can get him to support, and also amendments (14) and (15).

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

If I could take the chamber to the explanatory memorandum, particularly to page 108 and paragraph 672. What I am trying to achieve is a bit more clarity around what the Fair Work Bill sets out to do—and continue with, which might be a better expression. Paragraph 672 states:

It is intended that the following terms would be within the scope of permitted matters for the purpose of paragraph 172(1)(a) …

And the second dot point states:

terms relating to conditions or requirements about employing casual employees or engaging labour hire or contractors if those terms sufficiently relate to employees’ job security—e.g. a term which provided that contractors must not be engaged on terms and conditions that would undercut the enterprise agreement …

That is why I make the point that it is about protections that have existed for over 100 years in relation to protecting employees’ terms and conditions. This is not a new provision.

To disabuse the chamber of views that may have crept in from elsewhere, paragraph 673 states:

The following terms would not be intended to be within the scope of permitted matters for the purpose of paragraph 172(1)(a):

• terms that would contain a general prohibition on the employer engaging labour hire employees or contractors—

as I indicated in my earlier contribution. If you look at both of these matters together then you have protections for enterprise-level employees who have reached a collective agreement, so their terms will not be undermined by unscrupulous employers—but, in addition, to ensure there is balance, there is also a term to ensure there is a general prohibition on an employer engaging labour hire employees or contractors where there was a general prohibition, so it cannot be within the scope of permitted matters for the purposes of paragraph 172(1)(a).

What I am outlining is that the difficulty the opposition have is that in their raft of amendments they have put together a mishmash of different issues by trying to remove, and follow someone else’s drafting about removing, independent contractors. That has, by and large, two main problems. Firstly, it might lessen the protection that independent contractors already have. Secondly, it might remove provisions that independent contractors have enjoyed under industrial relations legislation for a very long time. And perhaps the third issue, which is always one of those I am loathe to rely on, is the unintended consequences of removing some of these matters in relation to where they end up and what that then means. The Forward with Fairness policy, the Fair Work Bill, has struck the right balance. It has been negotiated and has gone through a range of consultations to ensure that we did get the right balance. What we are now having is a re-litigation of one submission to a Senate inquiry which provided some draft. I urge the chamber not to follow that folly.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

As I understand the government’s position, the bill does not regulate the terms and conditions of independent contractors. I think that perhaps a nod from Senator Ludwig might be helpful.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Except outworkers.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Except outworkers; thank you. But in relation to amendment (12), where reference is made in the definitional sections to ‘workplace law’ including the Independent Contractors Act, does the minister consider that that could in some way be inconsistent with the government’s position in the context of the definition of workplace law, including the Independent Contractors Act?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

If I can say it in simple terms, it is a device that brings those laws into the general protections—it is as simple as that. It does not, in terms of what I think the opposition are saying, draw them into the framework of industrial relations that exists. They are not regulated by the Fair Work Bill—and I think the advisers are nodding—except with outworkers, of course. But it does, as I have indicated, provide those protections for independent contractors. Cavilling with that in the way that is now being proposed would lessen the protections in some part, would have unintended consequences in others and may in fact by a process of cherry picking cause some of those, as I have indicated, terms that would provide assistance to employees at an enterprise level to be removed. Those protections could be gone and an employer could undercut with the use of independent contractors those existing collective arrangements that parties have bargained for at the workplace.

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

This debate has been highlighting the issues, but I think we need to be clear about what amendments (6) to (12) are about, and that is restricting the right of freedom of association. That is why I found it interesting that Senator Abetz tried to quote back to us the ILO provisions as justifying the reasons for the amendments.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

He loves the ILO!

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

Yes, I am coming to appreciate that Senator Abetz does love the ILO! He quotes the ILO provisions as a reason for undermining with his amendments a key element of the ILO conventions, and that is freedom of association. It is interesting to note that he has been selectively quoting what the ILO have said about independent contractors. Yes, the ILO does recognise genuine—the important word here is ‘genuine’—independent contractors. There is nothing special about that; it is a statement of principle. He uses that to undermine key elements of the ILO conventions: freedom of association and the right to collectively bargain. What he was actually quoting from was an ILO decision from, as I understand it, 2003 to refuse to develop a separate instrument for independent contractors. When he is using ILO conventions, he probably needs to put them in context.

The point here is that amendments (6) to (12) are about undermining freedom of association and amendment (13) goes back to Work Choices when we are supposed to be ripping up Work Choices. I thought they had finished with their addiction to Work Choices, but apparently they have not overcome it yet—they may need to do a little bit of rehab.

Even if you split amendments (6) to (12) and (13), we will be opposing them because they seek to make unlawful contract provisions or terms regulating independent contractors. We will not be supporting them because amendments (6) to (12) undermine freedom of association and amendment (13) is definitely a step back to Work Choices and, again, undermines ILO conventions.

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

I have sort of been provoked to get up again to deal with some things. In relation to safety inductions, which the minister mentioned, other people visit work sites and are taken through safety inductions not covered by this legislation. If you are that concerned about safety inductions, I am sure that that can occur.

In relation to Senator Siewert’s stressing of the ILO resolution dealing with the word ‘genuine’, that is why this legislation replicates the previous legislation in relation to sham contracting. So there is a protection against sham contracting and, if it is accepted that it is not a sham contract, these people should be seen as genuine independent contractors. The fact that the ILO refused to make a resolution in relation to independent contracts in fact makes my case perfectly, because the International Labour Organisation says it only deals with the employee-employer relationship; it is not its business to deal with independent contractors. It makes my point perfectly. That is why genuine independent contractors should not be covered in this legislation. It is the same rationale but of course it does not suit Senator Siewert’s political agenda and philosophy. When she cannot get logic, she picks up what the minister does—takes a trip to the graveyard and kicks the corpse of old Work Choices, thinking that somehow that obviates the need for logic in her arguments.

At the end of the day, if I have to make a choice between the Greens and Labor or anybody else, including the coalition parties, as to who has the best interests of independent contractors at heart, do you know what? Chances are it is the Independent Contractors of Australia. These amendments are basically moved on their behalf. We support independent contractors, the aspirational classes that within this country are part of the small business community that generates jobs. That is what we are trying to encourage by removing and stopping the blurring.

I say again to Senator Xenophon: surely you do not need any more proof about the government’s intention to make independent contractors into employees than the fact that they now say that the Independent Contractors Act is going to be considered workplace law in this country. As a result, the Transport Workers Union in particular will have coverage of them.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (6) to (12) on sheet 5739 revised be agreed to.

Question negatived.

The Temporary Chairman:

The question is that opposition amendment (13) on sheet 5739 revised be agreed to.

Question put.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

The question now is that opposition amendments (14) and (15) be agreed to.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

I would ask that senators leave the chamber quickly. We are trying to move through the amendments as quickly as we can, so your assistance in leaving and being quiet would be appreciated.

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

I would request that we not deal with the right-of-entry provisions this evening. Madam Temporary Chair, you will see there are a number of provisions there, and there is the suggestion that some conflict with others. Rather than getting into that tangled mess, we—and when I say ‘we’ I mean the opposition and, I think, Senator Ludwig, Senator Siewert and Senator Xenophon, and I did not get around to Senator Fielding—were of the view it would be better that we not deal with them now. Therefore I would suggest, if he is agreeable, that Senator Ludwig move government amendments (1), (3) and (5) to (9) on sheet QC300 and we leave the right-of-entry provisions at this stage.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I did not want to get too far in advance of dealing with the right-of-entry provisions, but I do see some merit in what is being proposed, given the available time. If we could at least start with the general protections, and if we complete that we could deal with the two government amendments dealing with the National Employment Standards and disputes. I will just wait to see if others around the chamber agree.

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

I could not quite hear what was going on there. So we are moving beyond right of entry for the moment—

The Temporary Chairman:

Senator Fielding, the suggestion is that we will not be dealing with the next clump of amendments due to be moved by the government—that is, amendments (1) to (44) on sheet QW366. We will not defer them, but we will just jump that box and go to the next box.

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

Could I indicate to the chamber that I was going to suggest that if the government moved amendments (1) to (44) it should exempt amendments (13) and (15), which are in conflict with Family First’s views. But I am happy to bypass that at the moment.

The Temporary Chairman:

The plan is that we will come back to that tomorrow. We will move now to government amendments (1), (3) and (5) to (9) on sheet QC300. The minister has not yet moved them.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1), (3) and (5) to (9) on sheet QC300 together:

(1)    Clause 12, page 10 (after line 24), after the definition of annual wage review, insert:

anti-discrimination law: see subsection 351(3).

(3)    Clause 12, page 28 (line 13), omit the definition of State or Territory anti-discrimination law.

(5)    Clause 347, page 301 (line 31), after “association”, insert “, or to someone in lieu of an industrial association”.

(6)    Clause 351, page 304 (lines 12 and 13), omit paragraph (2)(a), substitute:

             (a)    not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(7)    Clause 351, page 304 (lines 22 and 23), omit the note.

(8)    Clause 351, page 304 (line 24), omit “a State or Territory”, substitute “an”.

(9)    Clause 351, page 304 (before line 26), before paragraph (3)(a), insert:

           (aa)    the Age Discrimination Act 2004;

           (ab)    the Disability Discrimination Act 1992;

           (ac)    the Racial Discrimination Act 1975;

           (ad)    the Sex Discrimination Act 1984;

These are technical amendments to ensure that an exception to the discrimination provision, which is clause 351, operates as intended. Currently the exception provides that action is not discriminatory if it is authorised under a Commonwealth, state or territory antidiscrimination law. Amendment (6) clarifies that the exception only relates to laws applying in the place where the action occurred. Amendment (6), together with both (8) and (9), makes clear that the exception applies where conduct is not unlawful under another antidiscrimination law—for example, statutory exemptions—rather than positively authorised under such a law. These amendments are necessary, as otherwise the exception would be limited and would not capture the full range of conduct that is permissible under a Commonwealth, state or territory antidiscrimination law. Briefly, amendments (1), (3) and (7) are in effect consequential to that.

That leaves, by my calculation, amendment (5). Proposed amendment (5) goes to the definition of engagement in industrial activity. It would make sure that the definition captures payments not only to industrial associations but also to persons in lieu of an industrial association. This would ensure that industrial associations cannot get around this important prohibition by having fees paid to a third party. You can see the necessity for that provision.

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

The opposition, having looked at this tranche of amendments, believe that they are supportable. Therefore, we indicate to the government that they have our support.

Question agreed to.

Minister, could I make a suggestion that we skip over the next tranche at the bottom of page 1. Looking through it, if I am correct, I am not sure that some of the amendments that are said to conflict with each other actually do. I would not mind having the opportunity later on tonight, and before tomorrow morning, to disaggregate them. I invite the minister to move the greenfield amendments and also the first lot of outworkers amendments. I can indicate to the minister that, as I said earlier, we are supportive of the amendments in relation to greenfield agreements.

The Temporary Chairman:

Senator Abetz, for the most part, this relates to numbering and not the actual content of the amendments. But you are still seeking time to examine them. Is that correct?

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

Yes, if I may.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I think the government is able to skip the government amendments which deal with the National Employment Standards and move to the greenfields agreements. It may be helpful if, during the time available, we deal with those amendments where there is agreement. We might be able to skip through them. If there is any objection we can obviously stop at that point and look at whether we want to have a debate for five minutes.

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Minister, are you seeking leave to move the amendments?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Sorry. You are quite right. I am seeking leave to move amendments (1) to (4) and (7) to (15) on sheet PJ444.

The Temporary Chairman:

And not (5) and (6) as well?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

They are separate.

The Temporary Chairman:

So you are seeking leave to move amendments (1) to (4) and (7) to (15).

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move:

(1)    Clause 12, page 11 (lines 8 and 9), omit “or 177(b)”.

(2)   Clause 12, page 12 (line 5), omit “sections 176 and 177”, substitute “section 176”.

(3)   Clause 172, page 162 (line 3), at the end of subparagraph (2)(b)(ii), add “and will be covered by the agreement”.

(4)   Clause 172, page 162 (line 19), at the end of subparagraph (3)(b)(ii), add “and will be covered by the agreement”.

(7)   Clause 178, page 168 (line 32), omit “; and”.

(8)   Clause 178, page 169 (lines 1 to 4), omit paragraph (2)(c).

(9)   Clause 182, page 172 (lines 24 and 25), omit “will be covered by the agreement”, substitute “the agreement is expressed to cover (which need not be all of the relevant employee organisations for the agreement)”.

(10) Clause 182, page 172 (lines 26 to 30), omit subclause (4).

(11) Clause 185, page 174 (after line 11), after subclause (1), insert:

     (1A)    Despite subsection (1), if the agreement is a greenfields agreement, the application must be made by:

             (a)    an employer covered by the agreement; or

             (b)    a relevant employee organisation that is covered by the agreement.

(12) Clause 187, page 177 (after line 23), at the end of the clause, add:

Requirements relating to greenfields agreements

        (5)    If the agreement is a greenfields agreement, FWA must be satisfied that:

             (a)    the relevant employee organisations that will be covered by the agreement are (taken as a group) entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

             (b)    it is in the public interest to approve the agreement.

(13) Clause 193, page 181 (lines 19 to 22), omit all the words from and including “that” to the end of subclause (3), substitute “that each prospective award covered employee for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee”.

(14) Clause 207, page 196 (line 4), after “concerned”, insert “and are covered by the agreement”.

(15) Clause 219, page 203 (line 20), after “concerned”, insert “and are covered by the agreement”.

I will deal broadly with all of these amendments and then we can deal with how we will vote. The substantive amendments to the Fair Work Bill in relation to the operation of greenfield agreements would remove the requirement that employers notify relevant employee organisations of their intention to make a greenfield agreement, which is item 5, and remove the provisions that would enable bargaining representatives to be appointed in relation to greenfield agreements, which is item 6. This will have the consequence that bargaining orders are no longer available in relation to greenfield agreements. In addition, they will make clear that an employer does not have to make a greenfield agreement with all relevant employee organisations, which is item 9, and insert additional approval requirements for greenfield agreements to ensure that relevant agreements are made by organisations that represent the industrial interests of a majority of the employees and are in the public interest, which is item 12. They will clarify the operation of the better-off-overall test in respect of greenfield agreements, ensuring consistency with the application of the test to non-greenfield agreements, which is item 13. The remaining amendments are consequential amendments to the measures described therein.

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

To point out the coalition’s position, can I refer to the excellent minority report authored by Senator Gary Humphries which he kindly allowed me and a few other senators to put our names to. On pages 149 to 153 of the Senate committee report, Senator Humphries set out some very important principles and views in relation to the coalition’s position. It became quite clear that we as a coalition were strong on this issue of greenfield agreements. Once again, one of the tests that I have been talking about this evening that we use in examining this legislation is jobs, and there is no doubt that if you have a greenfield agreement regime within your industrial legislation it assists new enterprises to get started and that creates jobs.

The coalition moved amendments. The government then, I might say in fairness, gazumped us with even better amendments. The fact that we are in heated agreement, it would seem, on this aspect of the legislation is one of those victories that we as a coalition will claim. But this is not an ideological victory; this is a victory for jobs and getting a regime that encourages greenfields enterprises. We commend the government for seeing the light.

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

I would not necessarily say it was something to celebrate that the opposition agrees with the government on these amendments. That will come as no surprise to the government because we have already indicated to the government that we think these amendments are, in fact, a step backwards from what we thought were quite good provisions in the bill in the first place. We will not be supporting these amendments. They are amendments in response to employer concerns and, as I said, they take a step back from what was in the bill in the first place. We do not believe they are good amendments. They enable the employer to essentially choose the union it wishes to make the agreement with, subject to FWA being satisfied the union will cover the majority of the employees and that it is in the public interest. The government puts two protections in place: FWA must be satisfied that the relevant employee organisation that will be covered by the agreement will represent the interests of the majority of the employees and there is a public interest test. We do not support that amendment; we believe it impinges on the rights of association by locking out other relevant unions. We think the government got it right in the first place and we are disappointed that it has caved in to hysteria from big business. The government has put that ahead of the rights of employees. As I said, we were very happy to support the government’s original proposed clauses in the bill. We should not support these particular amendments.

Question agreed to.

The Temporary Chairman:

The question now is that clauses 175 and 177 stand as printed.

Question negatived.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

by leave—I move government amendments (1) to (17) on sheet PY414:

(1)    Clause 12, page 14 (after line 2), after the definition of Deputy President, insert:

                 designated outworker term of a modern award, enterprise agreement, workplace determination or other instrument, means any of the following terms, so far as the term relates to outworkers in the textile, clothing or footwear industry:

             (a)    a term that deals with the registration of an employer or outworker entity;

             (b)    a term that deals with the making and retaining of, or access to, records about work to which outworker terms of a modern award apply;

             (c)    a term imposing conditions under which an arrangement may be entered into by an employer or an outworker entity for the performance of work, where the work is of a kind that is often performed by outworkers;

             (d)    a term relating to the liability of an employer or outworker entity for work undertaken by an outworker under such an arrangement, including a term which provides for the outworker to make a claim against an employer or outworker entity;

             (e)    a term that requires minimum pay or other conditions, including the National Employment Standards, to be applied to an outworker who is not an employee;

              (f)    any other terms prescribed by the regulations.

(2)   Clause 12, page 24 (lines 10 to 12), omit paragraph (e) of the definition of outworker entity, substitute:

             (e)    a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as:

                   (i)    the person arranges for work to be performed for the person (either directly or indirectly); and

                  (ii)    the work is of a kind that is often performed by outworkers; and

                 (iii)    the work is, or is reasonably likely, to be performed in the Territory or in connection with the activity carried on in the Territory.

(3)   Clause 27, page 46 (line 22), at the end of paragraph (2)(d), add “(within the ordinary meaning of the term)”.

(4)   Clause 46, page 61 (lines 1 to 3), omit the note, substitute:

Note:   Subsection (2) does not affect the ability of outworker terms in a modern award to be enforced under Part 4-1 in relation to outworkers who are not employees.

(5)   Page 69, after clause 57 (after line 14), insert:

57A Designated outworker terms of a modern award continue to apply

        (1)    This section applies if, at a particular time:

             (a)    an enterprise agreement applies to an employer; and

             (b)    a modern award covers the employer (whether the modern award covers the employer in the employer’s capacity as an employer or an outworker entity); and

             (c)    the modern award includes one or more designated outworker terms.

        (2)    Despite section 57, the designated outworker terms of the modern award apply at that time to the following:

             (a)    the employer;

             (b)    each employee who is both:

                   (i)    a person to whom the enterprise agreement applies; and

                  (ii)    a person who is covered by the modern award;

             (c)    each employee organisation that is covered by the modern award.

        (3)    To avoid doubt:

             (a)    designated outworker terms of a modern award can apply to an employer under subsection (2) even if none of the employees of the employer is an outworker; and

             (b)    to the extent to which designated outworker terms of a modern award apply to an employer, an employee or an employee organisation because of subsection (2), the modern award applies to the employer, employee or organisation.

(6)   Clause 140, page 136 (lines 25 and 26), omit “is, or is reasonably likely to be,”, substitute “is of a kind that is often”.

(7)   Clause 186, page 176 (after line 11), after subclause (4), insert:

Requirement that there be no designated outworker terms

     (4A)    FWA must be satisfied that the agreement does not include any designated outworker terms.

(8)   Clause 200, page 186 (line 22), after “employee”, insert “in any respect”.

(9)   Clause 253, page 229 (line 6), at the end of subclause (1), add:

      ; or (c)    it is a designated outworker term.

(10) Clause 272, page 244 (line 18), at the end of subclause (3), add:

      ; or (c)    any designated outworker terms.

(11) Clause 545, page 442 (after line 20), after subclause (3), insert:

     (3A)    An eligible State or Territory court may order an outworker entity to pay an amount to, or on behalf of, an outworker if the court is satisfied that:

             (a)    the outworker entity was required to pay the amount under a modern award; and

             (b)    the outworker entity has contravened a civil remedy provision by failing to pay the amount.

Note 1:  For the court’s power to make pecuniary penalty orders, see section 546.

Note 2:  For limitations on orders in relation to costs, see section 570.

(12) Clause 547, page 443 (lines 25 and 26), omit “an employer was required to pay to, or on behalf of, an employee”, substitute “a person was required to pay to, or on behalf of, another person”.

(13) Clause 548, page 445 (lines 9 to 14), omit paragraph (1)(b), substitute:

             (b)    the order relates to an amount referred to in subsection (1A); and

(14) Clause 548, page 445 (after line 17), after subclause (1), insert:

     (1A)    The amounts are as follows:

             (a)    an amount that an employer was required to pay to, or on behalf of, an employee:

                   (i)    under this Act or a fair work instrument; or

                  (ii)    because of a safety net contractual entitlement; or

                 (iii)    because of an entitlement of the employee arising under subsection 542(1);

             (b)    an amount that an outworker entity was required to pay to, or on behalf of, an outworker under a modern award.

(15) Clause 679, page 516 (line 9), after “employers”, insert “, outworkers, outworker entities”.

(16) Clause 682, page 517 (line 13), after “employers”, insert “, outworkers, outworker entities”.

(17) Clause 682, page 517 (lines 23 to 26), after “employees” (wherever occurring), insert “or outworkers”.

The group of amendments enhances protection for outworkers in the textile clothing and footwear, or what is commonly called the TCF industry. These amendments acknowledge the unusual nature of longstanding provisions in the TCF industry award in relation to outworkers. The amendments themselves would do four things. First, they would ensure that certain designated outworker terms in modern awards cannot be displaced by an enterprise agreement and that other outworker terms in enterprise agreements are assessed on a line-by-line basis rather than a global basis. Second, they would ensure that state and territory laws dealing with outworkers can continue to operate to the maximum possible extent. Third, they would clarify the scope of outworker terms that may be included in modern awards and, fourth, they would ensure that modern award terms that deal with outworkers can be enforced in the same way as terms dealing with employees. The government also intends to move amendments which ensure that unions entitled to represent TCF outworkers are able to enter premises for compliance or discussion purposes. If I could highlight that, that would be on QW366, but that is not being dealt with now.

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

I can indicate the opposition’s support of those amendments.

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

I indicate that the Greens will be supporting these amendments. They are important in addressing key issues regulating the TCF industry and outworkers and the TCF awards and outworker terms. There need to be clear limitations on what TCF award terms relating to outworkers can be excluded from agreements and only the minimum terms and conditions of employees should be allowed to be varied by an agreement, for example, in allowing improvements to pay. So overall we think that in fact these are good amendments and we will be supporting them.

Question agreed to.

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

by leave—I move Greens amendments (1), (3) and (4) on sheet 5730:

(1)    Clause 12, page 13 (line 2), omit the definition of conscientious objection certificate.

(3)    Clause 601, page 472 (lines 15 and 16), omit paragraph (5)(b).

(4)    Clause 625, page 485 (lines 13 and 14), omit paragraph (2)(e).

These amendments draw to a close a longstanding opportunity for religious organisations to have a different workplace arrangement from other sectors of the community. It is not really for religious organisations in general because the clause that this would take from what was Work Choices legislation was one specifically placed there after lobbying by the Exclusive Brethren organisation or sect in Australia.

In the event, if I can shorthand it in the short time we have left this evening, the particular clause that this and the consequent amendment would remove enable the Exclusive Brethren to prohibit union representatives from workplaces which they control. Under Work Choices legislation there are 31 such workplaces in Australia from which unions are prohibited, and that is regardless of what the people in those workplaces may think. They may want to request a union representative to assist them in ensuring workplace justice in an Exclusive Brethren site, but they are prohibited by law under the existing arrangements from being able to get union representatives to look at the workplace and ensure that workers are being treated properly.

This includes the potential for sect beliefs, which ride right over the top of the norms in Australia and in Australian workplaces, to be brought to bear. For example—and there will be disputation about this perhaps—it is a tenet of the Exclusive Brethren that women in workplaces should not have say over men and they are not treated equally with men in workplaces. As for many of the other tenets of this sect, you will know from debate in this place, Madam Temporary Chair, that youngsters in the Exclusive Brethren group or sect are prohibited from university education. Therefore Exclusive Brethren people do not come with university degrees, and people who are working in workplaces with university degrees will be from outside the sect. This applies, for example, to many if not most of the teachers in Exclusive Brethren schools, but they are always under the control of the sect itself and of people with lesser qualifications even though that goes against the norm in any other workplace across Australia.

The very compelling reason for supporting this amendment is that there are no workplaces in Australia where any worker should be deprived of her or his rights. There should be no workplace in Australia which is excluded from the reach of discrimination laws in this country and there should be no workplace in Australia excluded—by request of workers indeed—from union representatives coming in to check and see that workers are being treated in the way they would be in an equivalent workplace elsewhere in the country.

There may be arguments that such circumstances should exist in Australia in 2009 and, if so, those arguments will reach right back to the earlier part of the 19th century when this sect originated—although one has to say that such measures as the exclusion of Exclusive Brethren personnel from getting a tertiary education, a university education, are of much more recent origin. It is very unfair to hundreds of workers in Australia that they are in this situation of being prohibited from having the experts from unions coming to their workplaces—even if they requested it—to see that they are being treated fairly. So it is an important amendment. It brings Australia out of some century ago mindset into the 21st century and I hope that there will be support across the board for this amendment.

Progress reported.