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

We are dealing with government amendments (1) to (44) on a sheet QW366. I propose to divide the question that the committee is considering so that we deal first of all with those amendments—

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

Chair, with your indulgence, Senator Sherry did say earlier to Senator Ludwig if he kept talking he might talk himself out of support for a particular proposition. On this occasion, Senator Ludwig has in fact talked himself into gaining some support. I should indicate that, on the basis of the advice we have received items (2) and (3) are now supported by the opposition as well.

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

On that basis, I propose to put first of all those government am-e-ndments on which I understand there is not agreement. I then propose to entertain an amendment from Senator Abetz to amend amendment (19) and then to deal with the re-m--ainder of the amendments in that bracket (1) to (44), where I understand that there is support from the whole committee.

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

I am sorry to do this, and once again I am very indebted for the advice we are receiving, but we are now also indicating support in relation to item (34); item (40) with a change, but we can deal with in the next tranche; and item (41) with the change.

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

The question is that government amendments (1), (4) to (9), (17), (20) to (29), (31), (36) to (39), (42) and (43) on sheet QW366 be agreed to. I understand these are amendments are not fully supported in the chamber.

Question put.

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

As I said earlier, the issue of outworkers is a difficult one. Obviously the outworkers have a case. I was thinking about the amount of power that would be given under this legislation and I have to say that Senator Marshall made some sense in his plea. Rechecking my conscience, I think that erring on the side of looking out for those workers is the right thing to do. I apologise for wasting the time of the chamber for four or five minutes, but I appreciate the plea that Senator Marshall made.

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

Like Senator Fielding, I thought very hard about what I would do during that amendment because I too, particularly during my experience as previous Chair of the Employment, Workplace Relations and Education Legislation Committee, had dealings with the outworkers during the last round of industrial relations legislation. I would suggest to the government that, when the legislation goes back to the House of Representatives, they look at arming the ombudsman with more power to deal with some of the endemic problems within the outworker industry. We on this side see the amendment that has just been voted on as probably giving too much power to the union in that sense. But we would like to strengthen the role of the ombudsman. I suggest something along the lines of a flying squad or something within the ombudsman’s office to specifically deal with the problem of low-paid non-English-speaking background workers who are paid a very low rate of wages and who do not necessarily belong to the union. I think the coalition would be able to view this, without speaking for anyone but myself, more favourably. I hope that can be looked at.

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

If I may, I want to acknowledge Senator Troeth’s excellent record in this area. As I indicated, the opposition were considering these matters on balance. As we were discussing these matters, a number of issues were explained to us further, which allowed us to be more supportive of some of these government amendments. Given the vote of the committee that has just taken place, the notice of amendment that I gave of course needs to be withdrawn because it would be inconsistent with that vote. I can indicate that the coalition has no difficulty with the rest of the amendments and supports the next raft.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

The question is that amendments (2), (3), (10) to (16), (18), (19), (30), (32) to (35), (40), (41) and (44) 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—We have withdrawn amendment (21). I move opposition amendments (22) and (23) on sheet 5739 revised 2 together:

(22)  Clause 262, page 235 (after line 28), at the end of the clause, add:

Genuine agreement

        (6)    FWA must be satisfied that the making of a determination is by consent of the bargaining representatives and that such consent was reached by genuine agreement.

(23)  Clause 269, page 241 (line 12), after paragraph (1)(c), insert:

     and (d)    the bargaining representatives have genuinely agreed to seek a workplace determination;

The opposition is understanding of what may well occur in the vote on this matter. We still want to indicate that we believe that if these provisions in relation to arbitration are to be part of the framework then the issue of what genuine agreement means should be identified. We are suggesting that Fair Work Australia must be satisfied that the making of a determination is in fact by consent of the bargaining representatives and that such consent was reached by genuine agreement. The government went to the last election saying that there would be no forced agreements placed on parties. Indeed, on 30 May Ms Gillard said to the National Press Club:

Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

What the government has now done is to go back on that promise.

Another promise was made in Forward with Fairness that good faith bargaining would not require bargaining participants to make concessions or sign up to an agreement where they did not agree to the terms. The legislation now before us, however, allows Fair Work Australia to make a determination in matters where it is asserted that good faith bargaining has not taken place. We say that the provisions in relation to good faith bargaining are in fact putting in compulsory arbitration through the back door. We also say very clearly to the government that if it is to abide by its promise not to force anybody to sign up to an agreement where they do not agree to the terms then there should be no difficulty with their acceding to our amendment. That amendment makes it very clear that there has to be genuine agreement and that Fair Work Australia must be satisfied that the making of a determination is by consent of the bargaining representatives and that such consent was reached by genuine agreement and was not foisted upon them. It is a matter of whether the government is willing to abide by the promises and undertakings that it provided. So what we propose is to retain the new provisions but ensure that compulsory arbitration is only available where the bargaining representatives genuinely consent to such a determination being made.

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

In his opening comments, Senator Abetz articulated his thought that he was not going to get much support for this amendment. He is right: he is not. We oppose these amendments. We believe that last resort arbitration is essential for a fair bargaining system. In fact, as people would pick up from both my speech in the second reading debate and some of the amendments we have put, we believe that this bill has gone too far in taking out arbitration. We think that it should be going in the opposite direction to the one which the coalition wants to take. We will be strenuously opposing these two amendments.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

On behalf of the government, I indicate that we are opposed to these amendments. What the opposition seeks to do is impose an additional requirement that special low-paid workplace determinations can only be made where all bargaining representatives agree fundamentally. That undermines the whole concept of the provisions here. These determinations are for the purpose of allowing Fair Work Australia to resolve a deadlock in bargaining where the parties are genuinely unable to reach agreement. The threshold high jump for this is already very high. It can only be made where strict criteria are met. They include the terms and conditions of employers to be covered by the determination, a substantially equivalent safety net, that making a determination will promote future bargaining and productivity and efficiency in enterprise, and that it is in the public interest to make the determination. This, in a very small number of cases, allows Fair Work Australia to resolve a situation where there has not been bargaining in good faith and gives effect to the intention of this stream—to provide some protection for those particularly low-paid workers to get some justice in terms of their wages and conditions. So it is a very important part of the legislation. Certainly, it is one of the pieces of the legislation that I am personally most committed to. It is fortuitous that Senator Ludwig wanted a break when this clause was being considered because I am very pleased to be associated with the government’s position on this particular area. I think it is very important that the opposition amendments be defeated because they would undermine fundamentally what is a very important initiative as part of this legislation.

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

Quickly summing up, I understand what Senator Siewert said but, having listened to a homily about how the government had an absolute mandate, had a right and should be supported in bringing in policies for which it stood at the last election in relation to a previous matter, I remind the chamber that this was the cast-iron guarantee given under Labor’s policy:

Our policy clearly states that no one will be forced to sign up to an agreement where they do not agree to the terms.

This is a complete breach of faith with the Australian people and with what was promised. The government, at that time in opposition, promised this so as to clothe themselves in the economic conservative apparel that they were trying to clothe themselves in. Of course, now that the election is over, they are trying to rip it off as quickly as possible. The problem for Ms Gillard and the government is that these words are actually recorded. I note, with interest, that the minister does not deny the words that I quoted out of Forward with Fairness and does not deny that she made those promises. What we say is that negotiating an agreement is about trying to find areas on which you can agree. If you cannot agree on something, then you should not be forced under law to have someone else impose an agreement on you—especially in these circumstances, where there is the strong safety net of the National Employment Standards that has been created by the bill. What this is doing is introducing compulsory arbitration in circumstances where Labor gave a cast-iron guarantee not to introduce such a regime.

Question negatived.

We will not be pursuing opposition amendment (16). I move opposition amendment (17) on sheet 5739:

(17)  Clause 134, page 132 (after line 13), after paragraph (1)(d), insert:

           (da)    the requirement not to disadvantage employees; and

           (db)    the requirement not to increase costs for employers.

This is a very simple amendment and it will put the acid on the government. Ms Gillard made the promise to the Australian people that award modernisation would not disadvantage any employee. She also said to the Australian people—another one of these cast-iron guarantees that somehow have rusted away since 27 November—that there would be no increased costs for employers under award modernisation. They were the two solemn promises. We want to test and see whether the government is going to be true to its word and support the words of Ms Gillard or whether it is going to vote against her words and the promise that she made to the Australian people. Quite frankly, it was a promise that she must have known she could not keep. It was an impossible proposition to put to the Australian people. I personally believe that Ms Gillard knew that what she was saying was undeliverable, but I am willing to be corrected. The way that I will be corrected is when the government says, ‘Yes, Ms Gillard’s promise is deliverable and we will vote for these amendments.’ Somehow, by weaving some sort of industrial magic, we can have award modernisation which does not disadvantage any employees and does not increase costs for employers. In those circumstances, I am sure it is very easy for Labor to support the amendment and indicate that it has full support and faith in Ms Gillard’s comments to the Australian people before the last election.

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of Senator Evans, I can indicate the government’s position on this amendment. We will oppose the amendment. The Australian Industrial Relations Commission is required by the award modernisation request of the Minister for Employment and Workplace Relations to take into account the intention that modern awards not increase costs for employers or disadvantage employees. This enacts the commitment that, indeed, the Deputy Prime Minister has made. The transitional and consequential bill which was introduced yesterday provides for the Australian Industrial Relations Commission to continue and to complete the award modernisation process. We are indeed, Senator Abetz, dealing with the award modernisation process here rather than the ongoing basis for modern awards, which is our difficulty with your amendment.

The Australian Industrial Relations Commission is required to comply with the award modernisation request and to take into account the intention that modern awards not increase costs for employers or disadvantage employees. The appropriate stage for these considerations is the process being undertaken by the commission in making modern awards. These considerations are of primary importance when rationalising a large number of instruments, both federal awards and notional agreements preserving state awards. Modern awards will commence on 1 January 2010. The commission will have completed making modern awards by that time.

Although the bill does not prescribe the opposition’s proposed objective, the bill provides a modern awards objective which is balanced, comprehensive and appropriate. The modern awards objective was considered by both employer and employee representatives as part of the considered process of the Senate Standing Committee on Education, Employment and Workplace Relations for the Fair Work Bill 2008. The modern awards objective appropriately includes considerations to ensure both employees and employers benefit from a safety net which is fair and relevant. Indeed, as I highlighted, the request to the Australian Industrial Relations Commission meets the Deputy Prime Minister’s commitment which you are seeking to deal with in this matter.

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

I have a question of the minister. Are there any independent estimates of the costs of modernising the Australian award system?

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Is someone seeking the call? Otherwise, I will put the question on the amendment.

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

I am waiting for an answer to my question.

The Temporary Chairman:

I appreciate that, Senator Fisher. I expect that Senator Ludwig is seeking the call.

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

There are a couple of appropriate opportunities to ask that question. Firstly, the Australian Industrial Relations Commission can be asked that question at estimates, and I am sure, if you have not already done so, you will do that. The other answer in part, of course, is annual reports. The Industrial Relations Commission is an independent commission. It will deal with the costs of how it operates, and it will work within its budget.

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

No, the economic costs.

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

I am sorry; I thought it was just the costs. Is it that modelling question again? I think I have answered it earlier, if not today then—

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

Which was? Remind us.

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

I will go through the excursion again. I am not sure why we are wasting this much time when I have answered it. I think you asked it when we started off the committee stage of the Fair Work Bill.

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

No, I didn’t; I’m sorry.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Senator Abetz, the minister has the call, and this question and answer across the chair does not help.

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

I had gone through what this government has done, unlike what the opposition did in relation to Work Choices, unlike what the opposition did in respect of their position, because of course they did no modelling. We on this side provided a regulatory analysis. It went through significant issues, such as the regulatory impact. It not only went through the consultation that went forward but also included the proposals plus an outline, together with a range of information that is available about modern awards and the provisions within them, plus the impact analysis of those. I could take you to page xxix as part of that. This government has done a significant amount of work to deal with the broad issues surrounding this bill, including the regulatory impact. I think I gave a more fulsome answer when this debate began. If the advisers are happy to dig back and find what I said earlier, I can continue with that or we can get on with the amendments. I am in your hands.

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

Minister, I am happy to move on to my next question. In the face of employer concerns about increased costs to be caused by the award modernisation provisions and in the face of concerns being expressed by both the business community and the worker community about the potential for job losses to flow from the award modernisation provisions, I would have thought that the government might have thought that a regulatory impact statement is hardly an independent assessment and is hardly an independent economic modelling of the costs to be experienced by business, the costs to be experienced by the workforce and the costs to be experienced by the country from the award modernisation provisions. Minister, where does the Fair Work Bill legislate the government’s stated intent of some 12 months ago that modern awards would not disadvantage employees?

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

If I could deal with the two matters that you raised—they were not questions; I think they were statements that you were making—I reject them at the outset. It is late in the evening, whichever way you want to look at it, but on the substantive question that is being asked the issue of award modernisation is contained within the minister’s direction, which is available, which I am sure you have read and which I am sure that you have gone through with a fine tooth comb—as you would. You probably already know the answer that I have already given to that question. The adviser is looking for the request itself. We can certainly make it available. It is on the public record, as I understand it.

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

I have a copy in front of me.

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

I am really surprised!

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

Minister, it was to that request of the President of the Industrial Relations Commission that I referred in asking: where does the Fair Work Bill legislate that request, given that that request is a statement of intent and given that that request stated the government’s intention but did not legislate it? Some 12 months ago that request stated the government’s intention that award modernisation not disadvantage employees. Where does the Fair Work Bill legislate that intention?

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

If you think about it, the request is under section 576C(1), so this is part of the legislative program. If you look at what the document says, you see that it is the award modernisation consolidated version, and the objects of that does set it out. I will go to the issue that you refer to. It is set out at 2(c), which says that the creation of modern awards is not intended to disadvantage employees. It is contained in what I will call, in shorthand, the direction by the minister. I think it is plain. Quite frankly, I am sure you already knew that answer too.

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

As I understand it, they were provisions under the Workplace Relations Act. You were referring to section 576. Is there any provision in the Fair Work Bill that requires that modern awards not disadvantage employees?

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

You may not have caught up with this yet—I would be surprised if you had not—but the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 on page 53 says at part 2—the WR Act award modernisation process—‘AIRC to continue and complete the award modernisation’:

(1)

The Australian Industrial Relations Commission is to continue and complete the award modernisation process provided for by Part 10A of  the WR Act (the Part 10A award modernisation process).

               …            …            …

(2)

For that purpose, Part 10A of the WR Act continues to apply on and 9 after the WR Act repeal day in accordance with this Part.

(3)

Without limiting subitem (2), the request under section 576C—

which is the one I referred to earlier—

of the WR Act continues to apply on and after the WR Act repeal day, and may be varied in accordance with that section.

And it goes on. So those transitional provisions, if I can call them that in shorthand, continue on with that so that it does not disappear. So, when we do get to the transitional provisions, and I am sure it will have the support of the opposition, it will then, should it pass—and I do not want to foreshadow that debate when it should happen—continue those provisions.

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

I note your reference to the transitional bill in respect of disadvantaging employees. Where does the Fair Work Bill legislate the government’s statement of intent, made some 12 months ago through the minister’s request of the Industrial Relations Commission, that modern awards not increase employers’ costs?

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

The detail is set out in the request. I think that is the answer you are looking for, and that is plain.

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

Do I understand from the minister’s response that there is no provision in the Fair Work Bill that legislates the government’s 12-month-old promise that award modernisation not increase employers’ costs? I take it that there are no provisions in the Fair Work Bill that legislate that promise. Is that right?

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

No. The Fair Work Bill provides for the request. The request provides for what I have set out, which is that the creation of modern awards is not intended to—and the relevant provision is (c)—disadvantage employees. I am sure that you are familiar with how legislation works, but to be simple you could compare it to a situation akin to a regulation made under an act. I am sure you are familiar with those terms.

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

In your answer, you did indicate that the Workplace Relations Act refers to the government’s stated intention that award modernisation not increase costs for employers. Can I confirm, please, that the Fair Work Bill does not legislate to stop award modernisation increasing costs to employers. A statement of intent is all very well, Minister, and honourably made, I am sure. Where does the Fair Work Bill prevent award modernisation from increasing an employer’s costs? Or has the government decided that a statement of intent suffices? Those are my two questions.

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

I will go back to the primary position, which I am sure you understand, and it has probably been articulated to you before today. The government’s intention is clear. It is set out in the request under the existing section 576C to the Industrial Relations Commission, as it is now, in (1), (2) and (3), right through, dealing with a whole range of issues. Not only is the aim of the award modernisation process to create a comprehensive set of modern awards as set out in section 576A of the act but in addition it must be simple to understand and easy to apply and must reduce the regulatory burden on businesses. There is a range of other provisions, including:

(c)

must be economically sustainable, and promote flexible modern work practices and the efficient and productive performance of work; and

       …         …         …

(e)

must result in a certain, stable and sustainable modern award system for Australia.

It also deals with the creation of modern awards. It is not intended to—and we have dealt with this one—(c) disadvantage employees or (d) increase costs for employers. It deals with the performance of functions by the commission in section 3 and a range of other provisions, including consultation. It says:

The President will consult with the Australian Fair Pay Commission and State industrial tribunals as appropriate.

That is the clear position, as articulated by Ms Gillard, the Minister for Employment and Workplace Relations, pursuant to section 576C(1) of the Workplace Relations Act. As I have indicated, it will continue under the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009.

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

Minister, could I have a yes or no answer, please. Does the Fair Work Bill contain any provision that will prevent award modernisation from increasing employers’ costs?

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

What I have said, and I have said it very clearly, is that there is a ministerial request that deals with this issue in several ways. It deals with it by saying:

The creation of modern awards is not intended to:

(d)

..

That is the provision that it is contained in.

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

Minister, that is a provision in the Workplace Relations Act. My question is about the bill that this committee is considering. Minister, can you guarantee that if the Fair Work Bill is passed in its terms, without the passage of this opposition amendment, modern awards will not increase employers’ costs?

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

What we have said, and we have said it continually, is that there is a request under section 576C(1), award modernisation. It sets out perfectly logically what the minister must seek to do in an award modernisation request. It is to be read in conjunction with part 10A of the act. It deals with objects. It deals with the creation of modern awards, which is not intended to disadvantage employees or increase costs for employers. For all intents and purposes, it is very plain about what it sets out to do. That exists now under the current workplace relations legislation and it will continue to exist under the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009.

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

So there are aims and statements of intent under the Workplace Relations Act but no provision in the Fair Work Bill that will prevent modern awards from increasing employers’ costs. Minister, you referred to the transitional bill, introduced in the House of Representatives today—

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

Yesterday.

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

Thank you, Senator Abetz—of course. How time flies when we have fun. You referred to that in the context of not disadvantaging employees. Are there any provisions in the transitional bill that prevents modernising awards from increasing costs for employers?

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

We are now using the committee stage of the Fair Work Bill to start talking about the Fair Work (Transitional Provisions and Consequential Amendments) Bill. Be that as it may, the bill continues the framework which I outlined. I have outlined it a number of times. I am happy to outline it again if you are unsure of the process—that is, that this award modernisation request was made under 576C(1). The award modernisation request, which comes under that section, sets out that the creation of modern awards is not intended to disadvantage employees or increase costs for employers and it will continue under the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009.

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

Minister, the Workplace Relations Act contains a statement of intent from the government, some 12 months old, that modernising awards will ‘not disadvantage employees’ or ‘increase costs for employers’. You have indicated that yesterday’s Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 contains provisions to protect employees from being disadvantaged in the context of modernising awards. If that bill will protect employees in the application of a modern award, why does the government consider it appropriate to have provisions legislating one part of its 12-month-old promise—that is, to not disadvantage employees—yet not also see fit to legislate in the Fair Work (Transitional Provisions and Consequential Amendments) Bill the other part of its 12-month-old promise, which is to ‘not increase costs for employers’ through modern awards?

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

The short answer is: because we legislated 12 months ago. But I am sure you are aware of that.

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

Minister, if you legislated 12 months ago in respect of not disadvantaging employees as well, then why does the government see fit to legislate the same half of its promise in a bill introduced in the House of Representatives yesterday but not see fit to do the same for the other half of the promise, which is to not increase costs for employers—which, of course, if not achieved, will fail to protect employees in any event? The business community are saying that this process will increase their costs and will cost jobs for employees. So, Minister, why the necessity, in the view of the government, to legislate 50 per cent of the promise made 12 months ago but not the other 50 per cent?

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

It might be difficult to understand, but maybe I am saying it badly—I accept that. The request was made under the existing workplace relations legislation, under section 576C(1), and it continues under the transitional provisions. So the transitional provisions have now been tabled and it will continue under that. It was important to get the commission working on getting modern awards in place. I am sure we all agree with that. It is about ensuring that modern awards can be dealt with, because what we also did very early in the piece was remove AWAs. Unlike the previous government, you may not have agreed with them. In fact, I am told even by the opposition now that Work Choices is dead. But what you did when in government was to strip conditions, strip wages and strip shift loadings, penalty loadings and holiday pay away from people. That is what you did, and you did it not once but many, many times. I do not want to go and rustle up your old bones and have a look at them, but you should own them and recognise they are your bones, not ours.

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

Minister, why does the explanatory memorandum for the transitional bill say at the top of page 2:

FWA will have scope to make orders to ‘phase in’ minimum wages in modern awards on application by an employer where it is satisfied that such measures are necessary to ensure the ongoing viability of a business.

What are the practical circumstances that might give rise to this? Why is it necessary to provide for a phase-in provision?

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

I am pleased to note that the senator has a copy of the transitional provisions. I was concerned that you may not have had them. I am sure you have read part 3, ‘Avoiding reductions in take-home pay’, dealing with the part 10A award modernisation process. It says:

The Part 10A award modernisation process is not intended to result in a reduction in the take-home pay of employees or outworkers.

This is the difficulty we always get into if we ask questions around a transitional bill, but I am happy to attempt to deal with that. It provides:

An employee suffers a modernisation-related reduction in take-home pay if, and only if—

and then it sets out four criteria—(a), (b), (c) and (d)—as to when that circumstance could arise. The next item deals with an outworker who is not an employee and suffers a modernisation related reduction in take-home pay.

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

Minister, doesn’t that answer acknowledge that modern awards will effectively be permitted to be the operative or immediate reason for increasing employers’ costs? There is little other conclusion from that answer and from your earlier answers about the lack of any provision to the contrary in the Fair Work Bill.

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

I am amazed at the ability to extrapolate, but I do not think that is an assumption that you can make, quite frankly. It is not something that necessarily flows from one to the next. It is not a reasoned argument, I would put. The position I have outlined is the correct position. There are award modernisation processes in place and the Industrial Relations Commission is dealing with that. The consequential provisions deal with, in part, the effect of award modernisation in terms of employees, particularly part 10A, as I outlined. The issue at the heart of this is that the Minister for Employment and Workplace Relations has put in place an award modernisation request to be read in conjunction with part 10A of the Workplace Relations Act. It deals with the circumstances that I have outlined this morning and says:

2. The creation of modern awards is not intended to—

I will not go through them all again, but clearly I have been using—

(c) disadvantage employees;

(d) increase costs for employers …

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

Thank you, Minister. Whilst the transition bill allows for the phasing in of minimum wages in modern awards on application by an employer who can prove to Fair Work Australia that such measures are necessary to ensure the ongoing viability of their business, the Deputy Prime Minister indicated in her speech to parliament some 12 months ago when introducing the transition to Forward with Fairness legislation that Fair Work Australia, currently the Industrial Relations Commission, can put in place arrangements to phase in differences between old awards and modernised awards over five years. She said:

Such phasing-in arrangements will ensure that employers are provided with a lengthy adjustment period to adapt and plan for any such new standard.

Yet a lengthy adjustment period does not avoid increased cost at the end of that adjustment period. As Brad Norington wrote in the Australian today:

… Gillard—

the Deputy Prime Minister—

cannot deny the revamp of awards is heading in one direction.

Employers face steep increases in minimum rates, sooner or later.

          …            …            …

Award modernisation is a ticking time bomb for Gillard and the Government.

Your phase-in just tries, Minister, to defer the explosion until after the next election. That is what it tries to do; that is all it tries to do. It is hardly sophisticated. A phase-in period will not stop increased costs. It just says, ‘Sit there a bit longer, employer, and stew until the increased costs hit.’ Even then, according to the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009, employers can only achieve a phase-in period if they manage to convince Fair Work Australia that, if they do not get a phase-in period, the viability of their business would be directly impacted in a downward way. There is not even any room for seeking relief from Fair Work Australia if jobs are threatened without there also being a threat to the viability of the business. No; the only way you get a phase-in period, to sit and stew in, is if you can show that modern awards are the sole reason, the operative reason, for the lack of viability of the business in the longer term.

Minister, this morning you have provided the business community with no reassurance. However you cut it, a modern award can increase an employer’s costs. Minister, you have provided the employer community with no reassurance about the transition bill, which does by your own say-so impact on this bill—because in your answers you have talked about a statement of intent and aim of the minister. Your promises some 12 months ago under the Workplace Relations Act are impacted upon by the transition bill that was introduced yesterday that inextricably relates to and underpins this Fair Work Bill. The answers given by you this morning in this place can only lead us to conclude that a modern award can increase employers’ costs and in so doing can, on the say-so of the business community, cost employees their jobs.

So, despite the transition bill having some provisions that the government says might allow Fair Work Australia to make take-home pay orders to protect employees’ pay, the business community is clearly saying that, because of the probability that award modernisation will increase their business costs, that is going to cost employees their jobs. That is hardly protecting employees. As Brad Norington says, it is ‘a ticking time bomb for Gillard and the government’. Minister, is there any reassurance that you can provide to the business community and their workers that award modernisation will not increase costs and will not cost jobs?

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

The assurance I can provide is that under Work Choices no such transitional provisions, no such system, were put in place to ensure that when AWAs were offered to people that stripped their wages and conditions they could do anything other than take it or leave it. That is the system that you enjoined and I am not so sure you want to leave it, quite frankly. That is the system that you, as an opposition, had, and I am sure—

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

I am persuaded by Senator Abetz when he says Work Choices is dead—almost. Maybe a little bit longer and I will be completely persuaded. I am not persuaded that those sitting with him in the Liberal Party are not still wedded to it and would not like it to be brought forward and continued with. But we will check that later on today, I suspect. What I can say is that the idea of including transitional arrangements in modern awards was foreshadowed and is continuing. If you look back at the Liberals’ record in relation to this, they had award rationalisation as part of their process but never took it on. This government has set forward a system to ensure that modern awards will be in place. That is what this government has done, unlike the Liberals, who did not have the ability to pursue the rationalisation of awards as they claimed they were doing. What this government has done through a ministerial request is to ensure that the commission will undertake this work.

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

To sum up on this amendment, it is now quite clear—out of the minister’s own mouth—that the minister has no explanation to offer, as has been his wont throughout this debate. Whenever he does not have arguments he takes a little excursion to the graveyard to kick around a corpse. But that does not obviate the need for him to explain to this parliament why Ms Gillard made the promise that he now clearly does not support and will not be voting for. It was a silly promise to have made in the first place, I agree. But what we are doing here is testing Labor. I think we will know by their votes—and I can indicate that we are happy to do it on the voices. But we will be listening to hear whether there are any voices from the Labor side saying no, because those voices that say no will be repudiating Ms Gillard’s promise to the Australian people before the last—

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Don’t verbal there, Eric, please—

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

The only way the honourable senator opposite will be verballed is if she actually votes no. If she utters the word ‘no’ in relation to this vote, it will be a repudiation. The minister has not denied that that was the solemn promise made by the minister before the last election.

Question negatived.

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

by leave—I move Greens amendments (5), (6), (8) and (48) on sheet 5729:

(5)    Page 60 (after line 16), at the end of Subdivision B, add:

44A FWA may deal with a dispute about the application of National Employment Standards

        (1)    FWA may deal with a dispute about the application of National Employment Standards.

        (2)    FWA may deal with the dispute on application by any of the following to whom the dispute relates:

             (a)    an employee;

             (b)    an employer;

             (c)    an employee organisation;

             (d)    an employer organisation.

        (3)    FWA may deal with the dispute by mediation, conciliation or arbitration, including by making any order it considers appropriate.

        (4)    In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(6)    Page 60 (after line 23), after clause 45, insert:

45A FWA may deal with a dispute about the application of modern award terms

        (1)    FWA may deal with a dispute about the application of a term of a modern award.

        (2)    FWA may deal with the dispute on application by any of the following to whom the dispute relates:

             (a)    an employee;

             (b)    an employer;

             (c)    an employee organisation;

             (d)    an employer organisation.

        (3)    FWA may deal with the dispute by mediation, conciliation or arbitration, including by making any order it considers appropriate.

        (4)    In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(8)    Page 64 (after line 9), after clause 50, insert:

50A FWA may deal with a dispute about the application of enterprise agreement terms

        (1)    FWA may deal with a dispute about the application of a term of an enterprise agreement.

        (2)    FWA may deal with the dispute on application by any of the following to whom the dispute relates:

             (a)    an employee;

             (b)    an employer;

             (c)    an employee organisation;

             (d)    an employer organisation.

        (3)    FWA may deal with the dispute by mediation, conciliation or arbitration, including by making any order it considers appropriate.

        (4)    In dealing with the dispute, FWA must take into account fairness between the parties concerned.

(48)  Clause 595, page 469 (lines 4 to 13), omit subclauses (2) and (3), substitute:

        (2)    FWA may deal with a dispute as it considers appropriate, including in the following ways:

             (a)    by mediation or conciliation;

             (b)    by making a recommendation or expressing an opinion;

             (c)    by arbitration (including by making any orders it considers appropriate).

These amendments relate to the dispute resolution powers of FWA. I will not go into as much extensive detail as I perhaps would be tempted to if the hour were not so late. The Greens went to the election with an election promise which was very strongly in support of the dispute resolution powers of Fair Work Australia. We have held a very strong position on this issue through our industrial relations policy. We certainly went to the election with that policy.

I also articulated during my speech in the second reading debate our concerns about the fact that industrial relations policy in Australia has moved away from conciliation and arbitration and the fact that the bill lacked an independent dispute resolution process. So the Greens are moving these amendments in order to do two things. One is to explicitly provide Fair Work Australia with the power to deal with disputes over the application of the National Employment Standards modern award terms or terms of the enterprise agreement. The amendments also explicitly provide Fair Work Australia with broad powers, including arbitration powers, in resolving these and other disputes. Applications to Fair Work Australia would be able to be made by an employee or employer or by an employee or employer organisation.

We do not believe consent arbitration works, in particular for those employees that are unable to exert enough pressure to ensure arbitration in agreed dispute resolution clauses. This is fundamentally about fairness, and the fairness of this bill is severely undermined by the absence of effective dispute resolution processes. It is a little bit of a mockery to call it the Fair Work Bill when there is not an effective dispute resolution process. As I said, the Greens went to the election with a very strong policy on dispute resolution. We have said it from day one. We believe that this policy should have had independent dispute resolution processes in the bill to enact the name of the bill and to ensure that Australian workers have full access to a truly fair industrial relations system.

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

The government will not agree to the amendment proposed by the Australian Greens to give the FWA a separate power to arbitrate disputes about the application of the NES modern award terms or terms of the agreement. The position was raised in the amendment on sheet QU427 and it was really in recognition of the concerns raised by the Senate committee. The government moved amendments to make clear that the terms of the National Employment Standards can be replicated in an enterprise agreement. Where those terms are replicated they will operate as terms of the agreement, and disputes about those terms can be dealt with by the FWA under the dispute settlement terms of the agreement. I can add further to that, but I think that succinctly puts our position.

Nick Minchin (SA, Liberal Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

The opposition also opposes these amendments and joins with the government on this matter.

Question negatived.

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

by leave—I move Greens amendments (10) and (11) on sheet 5729:

(10)  Clause 139, page 136 (line 16), at the end of subclause (1), add:

           ; (k)    exceptional matters where the circumstances of the industry or sector warrant such matters being included in the award.

(11)  Clause 143, page 140 (after line 4), after subclause (7), insert:

        (8)    To avoid doubt, nothing in this section is intended to exclude from award coverage employees in new or emerging occupations that have not previously been covered by awards but whose work is of a character that would warrant modern award coverage.

This issue relates to the issue we have just been talking about—modern awards. We are revisiting an issue here that we raised during discussions on the transition to Forward with Fairness legislation last year. We propose that Fair Work Australia should be able to include in awards exceptional matters.

The limiting of award matters is another hangover, we believe, from the Howard years. We believe there should be more flexibility in the content of modern awards and the government should leave it to Fair Work Australia, with input from stakeholders, to ensure an appropriate and relevant safety net. We have a related concern that the bill makes unlawful terms in awards relating to right of entry. I know we have been dealing with right of entry through the evening. Apart from the confusion that may exist from the fact that other terms related to unions may require unions to enter premises—for example, to attend inductions or meet employees under a dispute resolution clause—we see no justification for awards to be banned from including better right-of-entry provisions if that is what the practice is or if it is appropriate in a particular industry or occupation.

In terms of item 12 we have particular concern about the modern award system and its ability to adjust to changing workplaces, both in relation to content and coverage. We seek a clarification of clause 143 that emerging industries or occupations will be able to be covered by modern awards—that is, that Fair Work Australia will be able to make new awards or extend coverage of current awards to such industries. Our amendment merely seeks to clarify and make explicit that that is the case. These concerns, as I said earlier, were issues that we raised at the time that we were discussing the Workplace Relations Amendment (Transition to Forward with Fairness) Bill 2008 last year. We expressed concerns at the time about some of the provisions of the award modernisation process and we have just had a long discussion about it. I appreciate that. But we are concerned about some of the rights and conditions that are being lost through the award modernisation process and believe that these amendments enhance the award modernisation process.

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

In relation to amendment (10), the government does not intend to expand the 10 allowable award matters. Expanding the allowable matters in modern awards to include exceptional matters could compromise the simplicity of modern awards. In relation to amendment (11), we accept the principle. The idea that awards can cover emerging areas of activity is reflected in the award modernisation request. However, the amendment is, we would submit, unnecessary. There is nothing in clause 143 that prevents awards covering such employees, and as the amendment itself recognises that, with the phrase ‘to avoid doubt’, I assume you already understand that 143 covers the section.

In relation to item 12, again the government does not intend to revisit the issue. The right of entry is properly provided for by a dedicated part of the Fair Work Bill, and modern awards and the National Employment Standards are a minimum safety net of terms and conditions of employment.

Question negatived.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The Greens oppose lines 17 to 21 in clause 152 in the following terms:

(12)  Clause 152, page 143 (lines 17 to 21), to be opposed.

The question is that lines 17 to 21 in clause 152 stand as printed.

Question agreed to.

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

by leave—I move amendments (1) to (19) on sheet 5745 together:

(1)    Clause 144, page 140 (line 7), omit “must”, substitute “may”.

(2)    Clause 144, page 140 (after line 11), after subclause (1), insert:

     (1A)    FWA is to include a flexibility term if it considers it appropriate for the industries or occupations covered by the award.

(3)    Clause 144, page 141 (after line 9), after subclause (4), insert:

Individual flexibility arrangement must not be a condition of employment

     (4A)    The requirement for genuine agreement in paragraph (4)(b) includes a prohibition on an individual flexibility arrangement being put forward by the employer as a condition of employment.

(4)    Clause 201, page 187 (line 2), omit “taken”, substitute “agreed”.

(5)    Heading to Division 5, page 188 (line 2), omit the heading, substitute “Division 5—Flexibility terms and consultation terms”.

(6)    Heading to clause 202, page 188 (line 3), omit the heading, substitute “202  Enterprise agreements may include a flexibility term”.

(7)    Heading to subclause 202(1), page 188 (line 4), omit the heading, substitute “Enterprise agreement may include a flexibility term”.

(8)    Clause 202, page 188 (line 5), omit “must”, substitute “may”.

(9)    Clause 202, page 188 (lines 25 and 26), omit subclause (4), substitute:

        (4)    An employee and employer may agree to include the model flexibility term in an enterprise agreement.

(10)  Clause 203, page 189 (after line 19), after subclause (3), insert:

Individual flexibility arrangement must not be a condition of employment

     (3A)    The requirement for genuine agreement in subsection (3) includes a prohibition on an individual flexibility arrangement being put forward by the employer as a condition of employment.

(11)  Clause 265, page 237 (line 14), after “subsection 264(1)”, insert “and allowed by section 274A”.

(12)  Clause 268, page 240 (line 9), after “subsection 267(1)”, insert “and allowed by section 274A”.

(13)  Clause 271, page 243 (line 35), after “subsection 270(1)”, insert “and allowed by section 274A”.

(14)  Clause 273, page 245 (lines 18 to 23), omit subclause (4).

(15)  Page 246 (after line 25), after clause 274, insert:

        (1)    A workplace determination may include a flexibility term that would, if the workplace determination were an enterprise agreement, satisfy paragraph 202(1)(a) and section 203 (which deal with flexibility terms in enterprise agreements.

        (2)    FWA may decide to include the model flexibility term in the determination.

Note:                The factors FWA must take into account in deciding terms of a workplace determination are set out in section 275.

(16)  Clause 144, page 141 (after line 13), at the end of the clause, add:

        (6)    The employer must lodge with FWA a copy of any individual flexibility arrangement within 14 days of the arrangement being signed in accordance with paragraph (4)(e).

Note:   This subsection is a civil remedy provision (see Part 4-1).

        (7)    FWA must make publicly available on request copies of individual flexibility arrangements lodged in accordance with subsection (6), with information that would identify the parties to the arrangement removed.

(17)  Clause 203, page 190 (after line 19), at the end of the clause, add:

        (8)    The employer must lodge with FWA a copy of any individual flexibility arrangement within 14 days of the arrangement being signed in accordance with paragraph (7)(a).

Note:   This subsection is a civil remedy provision (see Part 4-1).

        (9)    FWA must make publicly available on request copies of individual flexibility arrangements lodged in accordance with subsection (8), with information that would identify the parties to the arrangement removed.

(18)  Clause 539, page 429 (after table item 4), insert:

(19)  Clause 539, page 430 (after table item 5), insert:

I sought leave to move all these amendments together because they relate to the issues around flexibility. The Greens are very concerned about individual flexible arrangements. I articulated this in the second reading debate. It is an issue that we have held discussions with government about. I will seek in a moment some confirmation from the minister about the review of individual flexible arrangements. We are very concerned that they will be used as AWAs were. We all know that AWAs significantly undermined workers’ rights and conditions, particularly pre Work Choices AWAs and particularly those that operated in my home state in of Western Australia. Coming from WA, where pre Work Choices AWAs were used more widely than in the rest of the country, I know that, despite the need for them to meet a no disadvantage test against the award, they were still used to undercut the take-home pay and conditions of vulnerable employees. We are concerned that this may happen with individual flexible arrangements.

We acknowledge that there are more protections for workers under this bill, with IFAs, than there were with AWAs, in particular the provision allowing employees to terminate an IFA with 28 days notice and the fact that it will be more difficult for IFAs to be used as such an explicit anti-union mechanism as AWAs were. We also acknowledge that IFAs could be used effectively in, for example, allowing more family-friendly conditions. However, we are still concerned, as are many others—and I will get to that in a minute—that they have the potential to undermine award conditions and collective agreements and be used to exploit more vulnerable workers.

Our amendments do not merely oppose the clauses providing for IFAs, although that is our preferred option and we made that plain earlier. We propose there should not be mandatory terms in awards or agreements. Rather, it should be at the discretion of FWA whether such clauses are appropriate for each modern award, and it should be up to the parties to an enterprise agreement whether and to what extent such clauses are appropriate. There may be industries or occupations where such arrangements are not appropriate—for example, occupations that have 24-hour rosters and provide essential services, such as firefighting. In these circumstances, it should be up to the parties or FWA as to whether such clauses should be included in an award or an agreement.

We also propose that it should be explicit in the legislation that IFAs cannot be offered as a condition of employment. Amendments (16) to (19) in relation to IFAs relate to our concerns about transparency. As currently provided for in this bill, IFAs are written and signed and then nothing happens to them unless a breach is taken to court. We appreciate the government not wanting to replicate the bureaucratic nightmare of AWAs being checked by a government authority, but the problem we have is that we will not know how they are being used, who is using them and in what circumstances.

The Greens support the suggestion made to the Senate inquiry by Dr John Buchanan that there be a process of lodgment but not checking, with the agreements being able to be accessed publicly, but without revealing the parties, so there may be some transparency in the system. I have moved amendments to this effect. Dr Buchanan argued for the need for greater transparency, submitting:

Given that standards slid where agreements were collective in nature and subject to public scrutiny, the prospect for their erosion where they are individually made and not publicly registered is a matter of significant concern.

These agreements must be made available for independent scrutiny to help ascertain the impact they are having. What the government has committed to—because I think I can foresee the vote already—is that a review of the use of IFAs will be undertaken. We appreciate the government’s commitment to that. However, we do think it would be better to fix up the potential problem before it starts rather than waiting for problems—when the horse has bolted—before looking at whether conditions and entitlements have been undermined and then having to put in place a remedy to address that issue. We commend these amendments to the chamber.

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

The government is committed to having individual flexibility arrangements, and I think the Greens are well aware of that. In Forward with Fairness, the Fair Work Bill delivers on that commitment. In addition—and I think Senator Siewert recognises this—the government has agreed with the Australian Greens that the transitional and consequential legislation will require Fair Work Australia to conduct a review of modern awards after two years. I also point to the amendments on sheet PD364, which were moved yesterday, particularly amendments (14) to (17), which deal with the issues that I have outlined.

Question negatived.

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

by leave—I move Australian Greens amendments (4), (13), (15) and (16) on sheet 5729 together:

(4)    Clause 12, page 25 (line 13), omit “172(1)”, substitute”172(1A)”.

(13)  Clause 172, page 161 (lines 5 to 23), omit subclause (1), substitute:

Enterprise agreements may be made about permitted matters

        (1)    An agreement (anenterprise agreement) that is about one or more permitted matters may be made in accordance with this Part.

Note:   An employee organisation that was a bargaining representative for a proposed enterprise agreement will be covered by the agreement if the organisation notifies FWA under section 183 that it wants to be covered.

     (1A)    All matters, other than matters which comprise unlawful terms, are permitted matters.

(15)  Clause 194, page 182 (lines 21 to 27), omit paragraph (c).

(16)  Clause 194, page 183 (lines 1 to 13), omit paragraphs (e) to (g).

These amendments relate to collective agreements. The Greens are generally very supportive of the bargaining provisions in the bill. We support collective and good faith bargaining provisions. Our key concerns go to the content of agreements and the restrictions on the level at which good faith bargaining can occur. As has been made clear, the Greens believe parties should be free to agree on any matters, apart from unlawful matters, in their agreements. Our amendments (13) and (14) provide for this. We also note in the ALP’s Forward with Fairness policy that ‘bargaining participants will be free to reach agreement on whatever matters suit them’. Instead of sticking to that policy, the government have taken us back to the ‘matters pertaining’ formula, with some exceptions. While acknowledging that matters pertaining to the employment relationship do not include union activities, the bill has to provide for them and pay deductions separately. What this says to us is that the matters pertaining formula is inadequate.

This part of the bill came in for severe criticism from academics. Professor Stewart commented that the law surrounding the concept of matters pertaining is ‘confusing, uncertain and downright inconsistent’ and he calls for the concept to be ‘given a decent burial’. Professor Stewart is also concerned that restricting the content of agreements will perpetuate the use of side agreements, which are ineffective and unproductive. Of particular concern for the Greens, as we as a community face the prospect of catastrophic climate change, is that the bill does not allow employees to engage in bargaining with their employers over environmental or climate change initiatives. Dr Buchanan agrees with us. He said:

As we move to an increasingly carbon constrained future it is unclear why our labour law is clinging to nineteenth century notions of managerial prerogative and thereby limiting the ability of the parties to enforceable agreements to reach innovative solutions to the problems they encounter.

We in fact agree with the ALP’s policy document, which states:

… as long as bargaining participants bargain in good faith and are able to reach agreement, they should be free to do so without the need for government intervention or to comply with complex procedural rules and requirements.

Restricting the content of agreements is also contrary to ILO determinations. The ILO has noted that:

Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention on the Right to Organise and the free and voluntary nature of collective bargaining.

Amendments (15) and (16) remove from the definition of ‘unlawful matters’ terms which provide better provisions relating to the employment period for unfair dismissal, industrial action and right of entry. The Greens see no reason why, if parties wish to agree on such terms, they should be prevented from doing so.

These amendments in fact implement the government’s policy and original intent. We believe this is a particularly important set of amendments because we strongly believe in collective bargaining and that parties should be able to reach agreement on whatever matters they wish. This came up repeatedly during the Senate inquiry. We urge the chamber to support these amendments. However, I ask for the question on amendment (13) to be put separately, if possible.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

I will put the question on amendment (13) separately.

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

Employers and employees are always free to negotiate any matter they wish to in the workplace, but in this instance the government believes enterprise agreements made under the workplace relations legislation must remain connected to the employment relationship. The matter of environmental issues is raised, but these issues can also be included in agreements if they pertain to the employment relationship.

In addition, in relation to the removal of the right of entry and unfair dismissal as unlawful content, the unfair dismissal provisions of the bill do ensure that good employees are protected from being dismissed unfairly. It is inappropriate for enterprise agreements to undermine these provisions. The terms of unfair dismissals may be included in enterprise agreements as long as they do not lessen the qualifying period for unfair dismissal or deviate from the unfair dismissal provisions of the bill in a way that is detrimental to an employee. It is appropriate, though, that an agreement cannot remove or undermine an employee’s entitlement to unfair dismissal protections.

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

Can I apologise. I ask that my previous request be reversed and that all of the amendments be moved together. I note that I would normally have called a division on amendment (13), but I am being reasonable and will not seek to do that. We feel extremely strongly about matters pertaining to that. We would normally have divided. Given the late hour I will not call for a division, but I would like on record the reason for that. I know I am anticipating the vote of the chamber, but that explains why I will not be seeking to call a division.

The Temporary Chairman:

Thank you, Senator. We will revert to the former position of moving the four amendments together.

Question negatived.

The Temporary Chairman:

We now turn to opposition amendments (19) and (20) on sheet 5739.

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

I should indicate that when we had the greenfields debate I conceded that the government’s amendments were better than ours and therefore we would not be proceeding.

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

I move Australian Greens amendment (14) on sheet 5729:

(14)  Clause 180, page 170 (line 28), omit “7-day”, substitute “14-day”.

This relates to the access period for enterprise agreements. Our amendment returns the period of time employees must have to consider a proposed enterprise agreement to 14 days. The seven days in the bill was too short a time for employees to be able to access advice on proposed agreements.

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

We will not be supporting this amendment. The seven-day period for ready access to a proposed agreement will ensure that the approval of an enterprise agreement is not unduly delayed when the parties have already agreed to the terms. When an employer initiates bargaining it must give employees notice of the right to be represented by a bargaining representative and it must not ask employees to approve an agreement until at least 21 days after this notice has been given, and of course good faith bargaining orders will also be available during this period. The government believes that it achieves the right balance between protections for employees and the need for an agreement to be speedily approved once it has been reached.

Question negatived.

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

I move Greens amendment (17) on sheet 5729:

(17)  Clause 229, page 208 (lines 1 to 4), omit subclause (2).

This relates to multienterprise agreements. There was some important evidence given to the Senate inquiry about the provisions in the bill relating to multienterprise agreements and single-interest agreements. Evidence was received from unions representing teachers and nurses, for example, who were concerned that the provisions would limit their ability to reach agreements across their occupations and achieve fairness and stability. We share these concerns. Further, we believe it is the right of parties to bargaining to determine the level at which they will bargain. Our amendment does not go so far as to completely address all our concerns on this issue but it does allow Fair Work Australia to assist in multienterprise agreement making. Fair Work Australia will have discretion in how it applies the GFB provisions. We urge the Senate to support these amendments.

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

Thank you, and thank you for the urging, but probably because it is early morning—

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

Go on, think again!

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

I do not know whether I could. To ensure multienterprise bargaining occurs on a voluntary basis, protected industrial action and good faith bargaining orders will not be available when bargaining for a multienterprise agreement. This is also consistent with the government’s clear policy intention to prevent industrial action in pursuit of pattern bargaining. We have made that position very clear. We do not support the amendment. We understand the principle behind it but it undermines what we say is the system that we are seeking to put in place.

Question negatived.

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

I move Family First amendment (3) on sheet 5733:

(3)    Page 219 (after line 25), after clause 241, insert:

241A Application of this Division

                 This Division does not apply in relation to small business employers or their employees.

This amendment is to do with the general topic of facilitated bargaining for the low paid. At the end of it, the concern that we have got is about imposing the bargaining. I do not want to waste the Senate’s time tonight; the will of the chamber is not there.

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

I indicate on behalf of the coalition that we do support the amendment.

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

The government was not going to support it. The low-paid bargaining stream is designed to extend the benefits of bargaining to employers and employees who have not been able to bargain in the past. This includes the small business sector, where individual employers often do not have the time or resources to bargain with their employees. I could go into a lot more detail, but I think you get the gist of it.

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

I indicate the Greens opposition to this provision.

The Temporary Chairman:

We are dealing with Family First amendment (3) on sheet 5733. The question is that the amendment be agreed to.

Question negatived.

The Temporary Chairman:

We now turn to Australian Greens amendments (18) and (19) on sheet 5729.

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

by leave—I move Greens amendments (18) and (19) on sheet 5729:

(18)  Clause 260, page 234 (after line 14), at the end of the clause, add:

        (6)    For the purposes of paragraph (5)(c), an employer may be identified by a trading name, being a name that the employer trades under, or is known as by its employees, suppliers or customers.

(19) Clause 262, page 235 (line 25), at the end of subclause (4), add:

   ; and (c)    an improvement in the employment conditions of the employees.

I also propose to talk to amendment (20) to progress the debate, and so I indicate that the Greens oppose clause 263 in the following terms:

(20)  Clause 263, page 236 (line 1 to 21), to be opposed.

This is about the low-paid bargaining stream, which the Greens are very supportive of. In fact, I think I have expressed my surprise that these provisions went as far as they did. I have congratulated the government and I congratulate them again for taking this approach. However, we think that they could be improved. There are three amendments that could improve on this stream and these provisions.

In amendment (18) we have taken up a suggestion from the SDA about businesses being able to be identified by their trading name in applications under these provisions. We think this is a practical suggestion, with no detrimental consequences. In amendment (19) we have also taken up another suggestion by the SDA, who pointed out that, in making a low-paid bargaining determination, FWA takes into account future bargaining and the productivity and efficiency in the enterprise but not whether the employment conditions of the employees will be improved by the determination. It may be implied—and in fact that is what the government’s response has previously been, that it is implied—but we believe it should be explicit.

Amendment (20) is a more substantial amendment, to remove the condition for a low-paid determination that the employer must not have been a party to a collective agreement in the past. While we understand the intention of the provisions is to assist collective bargaining where it has been difficult in the past, we believe this restriction is too severe and that there may remain barriers to collective bargaining even where an employer has been involved in one in the past.

These low-paid bargaining provisions are very important, and we believe that these amendments could improve them even further. We urge the government to consider them.

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

I can say that the government have considered Greens amendments (18), (19) and (20). In short, we do not think (18) and (19) are required. With regard to (18), we think that Fair Work Australia will be able to vary an application to ensure that employer names are correctly identified. Amendment (19) is not required, as the bill already makes it clear that a workplace determination must pass the BOOT. In relation to amendment (20), those limitations are very important. They limit the ability for low-paid workplace determinations and they should remain. On that basis, we do not support these Greens amendments—although, because of the substantive work that has gone into them, we did have a very long look at them.

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

I am not going to delay this debate very long, but if the minister could just articulate the first point he made again. If I understand him correctly, he said that Fair Work Australia will be able to go back and correctly name a company if they are having difficulties. As I understand from both the written and oral submissions by the SDA to the committee inquiry, there have been problems with this in the past, which is why they raised it with the committee. So I am just seeking some clarification as to whether the concerns we have raised have in fact been dealt with.

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

I can confirm that the powers are general powers to be able to correct things such as you have described. For example, Fair Work Australia will be able to vary an application to ensure that employer names are correctly identified if the applicant is not able to do this and can only specify the trading name. These are general powers that are usually held by bodies such as the AIRC and Fair Work Australia—being able to correct things, effectively so that they do not fall out of the system because of a mistake in a name.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Australian Greens amendments (18) and (19) on sheet 5729 be agreed to.

Question negatived.

The Temporary Chairman:

We now turn to Australian Greens amendment (20) on sheet 5729. The question is that clause 263 stand as printed.

Question agreed to.

The Temporary Chairman:

We now turn to Australian Greens amendment (21) on sheet 5729.

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

Chair, can I suggest that I move Greens amendment (21), (22) to (24) and (7) from sheet 5729 together.

The Temporary Chairman:

Amendment (21) would have to be put separately because of the form of the question that will be put by the chair. You may speak to the them together and we will put them separately in due course.

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

by leave—I move Australian Greens amendment (22) to (24) and (7) on sheet 5729.

(22)  Clause 332, page 288 (line 8), omit paragraph (1)(c).

(23) Clause 332, page 288 (lines 20 to 26), omit subclause (3).

(24) Clause 333, page 289 (lines 8 to 10), omit the clause, substitute:

333 High income threshold

        (1)    The high income threshold is $150,000, indexed in accordance with subsection (2).

        (2)    The regulations must prescribe a method for the annual indexation of the high income threshold by reference to the increase in the full-time adult average weekly ordinary time earnings for all persons in Australia, as published by the Australian Statistician.

(7)    Clause 47, page 61 (lines 23 to 27), omit subclause (2).

I also indicate that the Greens will oppose clauses 328 to 333 in the following terms:

(21)  Division 3, clauses 328 to 333, page 285 (line 2) to page 289 (line 10), to be opposed.

For us these are very important matters. I appreciate the lateness of the hour so I will seek to expedite the debate as much as possible, which is why I will talk to these amendments together. The amendments all relate to the guarantee of annual earnings and high-income thresholds. I realise that we dealt with this issue earlier in the evening. For amendments (7) and (21) the Greens oppose the exclusion from award coverage of high-income employees through the guarantee of annual earnings provisions. Awards contain important protections that are not just related to salary, and we do not believe that awards should be undermined in this way. As the Association of Professional Engineers, Scientists and Managers, Australia, said in their submission:

All employees, regardless of the level of their income, require the protection afforded by properly negotiated awards.

In terms of amendments (22) and (23) in the alternative, we do not believe the non-monetary benefits should be part of the calculation in determining whether a person’s salary reaches the high-income threshold. Obviously these are alternative proposals to (7) and (21) because we do not believe that high-income thresholds should be in the legislation. As I was saying, we do not believe the non-monetary benefits should be part of the calculation in determining whether a person’s salary reaches the high-income threshold, given guarantees of annual earnings can be a condition of work. This strengthens the ability of employers to demand particular calculations of non-monetary benefits, which can be extremely difficult to calculate.

In terms of amendment (24), we also believe that the high-income threshold in the legislation at the amount indicated by the government—that is, $100,000—is too low. We suggest that if it is to be in legislation it should be a threshold of $150,000 and that it should be indexed to AWOTE. We do note the government amended the legislation to provide that the threshold cannot be reduced, and that is important. As you know, we supported that amendment. Once again I commend the amendments to the chamber and appreciate that now we will be moving the different amendments separately.

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

The short answer to amendments (7), (21) and (24) is that the government remains committed to the implementation of Forward with Fairness and the $100,000 high-income threshold as indexed from 2007. In relation to amendments (22) and (23), the Fair Work Bill only includes non-monetary benefits where they are provided as part of an employee’s remuneration, and the government does not intend to depart from that. So, unfortunately, Senator Siewert, that is not comforting for you.

Mark Bishop (WA, Australian Labor Party) Share this | Link to this | Hansard source

We are dealing with Australian Greens amendment (21) on sheet 5729. The question is that division 3 of parts 2 to 9, clauses 328 to 333, stand as printed.

Question agreed to.

The Temporary Chairman:

We now turn to Australian Greens amendments (22) to (24) and (7) on sheet 5729.

Question negatived.

The Temporary Chairman:

We now turn to Australian Greens amendments (1), (2) and (4) on sheet 5746. Senator Siewert, you are seeking leave for them to be moved together?

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

In fact, I am withdrawing those amendments.

The Temporary Chairman:

That takes us to Australian Greens amendment (6) on sheet 5746. Is that also withdrawn, Senator Siewert?

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

Yes, amendment (6) is withdrawn.

The Temporary Chairman:

We now turn to Australian Greens amendment (7) on sheet 5746.

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

I move amendment (7) on sheet 5746:

(7)    Clause 388, page 324 (after line 3), after subclause (1), insert:

     (1A)    The Small Business Fair Dismissal Code must provide that, prior to giving a person a notice of dismissal, an employer must:

             (a)    give the person warnings, in writing, that the employer is considering dismissing the person, including details of the reasons the employer is considering that action; and

             (b)    take all reasonable steps to meet with the person to discuss the warnings.

This amendment relates to job security and unfair dismissal and redundancy. Some of these issues we have dealt with previously, but amendment (7) in particular relates to removing the discrimination against employees of small business. We have had a very long debate, I know, about unfair dismissal and the definition of small business, so I will try and keep this short. We believe the small business fair dismissal code must contain a requirement for written warnings. The committee inquiry heard a great deal of evidence about how allowing oral warnings could compound the unfairness to small business employees in particular. Asian Women at Work, for example, told of the prospect of an employer issuing a verbal warning in the midst of erratic and unwarranted abuse and bullying without any possibility of the worker making a serious response in their defence or even acknowledging that it was a warning in the first place. Verbal warnings are highly unreliable. It is likely they will be contested as to what an employer said and whether it constituted a warning or whether an employee understood what was required of them to meet their employer’s concerns, particularly if any warning is given in emotional circumstances. We believe greater formality is needed.

We believe our amendment requiring written warnings is essential if we are actually properly to address the issue of fairness in this bill. During the committee inquiry we were given a number of examples where, for example, a manager or boss was being quite abusive to an employee and it happened on repeated occasions; it was not a one-off. So when is the employee to know when that abuse or that shouting at the worker or telling off of the worker was actually a reprimand or whether it was a formal warning? We believe relying on oral warnings will unnecessarily confuse things, in fact probably make things more complicated for small businesses, but also it leaves workers extremely vulnerable. Again here we are talking about some of the most vulnerable workers in our workforce, and very often we are talking about workers who come from a non-English-speaking background and so have even further problems understanding an oral warning. At least if it is a written warming they will be able to go and seek advice about it to in fact understand what is being said to them in terms of the warning.

We believe this amendment is particularly important in delivering fairness through the small business fair dismissal code. It is called the small business fair dismissal code for a reason. We believe it is much fairer to deliver a warning in writing than to just rely on oral evidence.

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

The working group did carefully consider this issue and it decided not to recommend mandatory written warnings due to the red-tape burden that this would place on employers. The small business fair dismissal code was settled last year in close consultation with that working group. The fair dismissal code does require that a warning be given and that an employee be given an opportunity to respond to the warning and a reasonable chance to rectify the problem. That is the position that we have achieved. I think it is the right balance between the small business employer and the employee. Although it encourages written warnings, the emphasis is on genuine and honest exchange.

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

We very strongly disagree with the government. We do not believe that it is fair in any way, shape or form that relying on oral warnings is considered enough. We do not believe it is fair. Having said that, I can tell what the feeling of the chamber is. I would like to put on record that we normally would have called a division on this—this is how strongly we feel about it—but, given the lateness of the hour, we will not. I just wanted to put that on record.

Question negatived.

I move Greens amendment (3) on sheet 5746:

(3)    Clause 384, page 320 (line 30) to page 321 (line 21), omit subclause (2).

We are also concerned with unfair dismissal protections as they relate to the provision of transferring employees—that is, employees who transfer from an old employer to a new employer under the transfer of business provisions. The bill provides that the new employer can decide whether or not to recognise the employee’s service for the purposes of unfair dismissal protection. We cannot support this position. It could lead to a situation where an employee has worked for an employer for five, 10 or 20 years perfectly satisfactorily then, doing the exact same job, have their employment terminated at will during the next six to 12 months.

During the Senate inquiry we heard evidence about that practice in the aged-care industry. There have been a number of stories of how, when aged-care centres are sold, the accrued entitlements of the employees are calculated into the sale price and then employees are taken on initially and then dismissed. This is an unacceptable practice. We also believe that the period of time an employee may work for an employer as a casual should count towards the employee’s period of employment. The minimum employment period is to enable the employer to assess the employee. A period of casual work definitely serves that purpose.

We believe this amendment deals with a hole in the unfair dismissal provisions, and there are real examples of where this hole has been abused. I have heard of numerous examples such as the aged-care example. There have been several examples in Victoria. We urge the government to act to ensure that this sort of thing cannot happen and that employees’ entitlements are protected.

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

The government indicated that it would not accept recommendation 10. The amendment that you have proposed is based on that. The bill requires that a new employer notify transferring employees if a new minimum employment period will be required. Of course, if the employer fails to notify transferring employees in writing of the requirement to serve a new minimum employment period, previous service with the old employer will be recognised and the employees will not be required to serve a new minimum period for unfair dismissal purposes. The government did decide that it was important to give the new employer flexibility in this regard; otherwise, it could act as a disincentive to new employers offering employment to employees of the old employer.

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

The question is that Australian Greens amendment (3) on sheet 5746 be agreed to.

Question negatived.

The Temporary Chairman:

We now move to Australian Greens amendment (5) on sheet 5746.

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

Chair, in view of the fact that we have already had a discussion about warnings in writing where I went down in a screaming heap, I withdraw this amendment.

The Temporary Chairman:

We will now move to Australian Greens amendments (1) to (4) on sheet 5732.

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

by leave—I move Australian Greens amendments (1) to (4) on sheet 5732:

(1)    Clause 389, page 324 (after line 24), at the end of the clause, add:

        (3)    A person’s dismissal was not a case of genuine redundancy if:

             (a)    the employer; or

             (b)    the employer’s enterprise; or

             (c)    the enterprise of an associated entity of the employer;

pays excessive remuneration to any other person.

Note:   Excessive remuneration is dealt with in section 536A.

(2)   Page 324 (after line 24), at the end of Division 3, add:

389A Dealing with excessive remuneration

        (1)    An employer must not terminate an employee’s employment because of, or for reasons including, redundancy if:

             (a)    the employer; or

             (b)    the employer’s enterprise; or

             (c)    the enterprise of an associated entity of the employer;

pays excessive remuneration to any other person.

Note:   Excessive remuneration is dealt with in section 536A.

        (2)    Despite any other provision in this Part, if an employee’s employment is terminated contrary to subsection (1), the employee is taken:

             (a)    to have been unfairly dismissed; and

             (b)    to meet the requirements of subsection 390(1); and

             (c)    to be entitled to apply for a remedy under section 394.

        (3)    Clause 524, page 417 (after line 25), after subclause (2), insert:

     (2A)    An employer must not stand down an employee under subsection (1) if:

             (a)    the employer; or

             (b)    the employer’s enterprise; or

             (c)    the enterprise of an associated entity of the employer;

pays excessive remuneration to any other person.

Note:   Excessive remuneration is dealt with in section 536A.

      (2B)    Despite any other provision in this Part, if an employer purports to stand down an employee contrary to subsection (2A), the employee:

             (a)    is entitled to continue to receive payments from the employer for that period; and

             (b)    is taken to be entitled to apply to FWA to deal with the dispute under subsection 526(3); and

             (c)    is taken, for the purposes of subsection 526(4), to have been dealt with unfairly.

(4)   Page 426 (after line 24), at the end of Part 3-6, add:

Division 4—Reducing excessive executive salaries

536A Meaning of excessive remuneration

        (1)    An employer pays excessive remuneration to a person if the amount (or value, as appropriate) of the remuneration paid to the person by the employer exceeds $500,000 per annum, unless the employer has an executive high pay authorisation operating in relation to that person.

        (2)    FWA may make an order (an executive high pay authorisation) applying to an employer in relation to a person if FWA is satisfied that the remuneration paid to the person by the employer is not excessive.

        (3)    In determining whether the remuneration paid to a person is excessive, FWA must have regard to:

             (a)    community standards of reasonableness of remuneration;

             (b)    the extent to which the remuneration paid to the person by the employer could be, or has been, reduced so that the employer could avoid:

                   (i)    terminating the employment of any person because of, or for reasons including, redundancy; or

                  (ii)    standing down any person under subsection 524(1);

             (c)    the need to encourage the ongoing employment of the maximum number of people;

             (d)    the ratio of the remuneration to the average weekly wage;

             (e)    any other matter FWA considers relevant.

        (4)    FWA may make an executive high pay authorisation, or may decide not to make an executive high pay authorisation, pursuant to an application from:

             (a)    an employer; or

             (b)    an employee who reasonably suspects that the employer intends to terminate their employment on the grounds of redundancy; or

             (c)    an organisation of employees entitled to represent a person referred to in paragraph (b).

        (5)    FWA may make an executive high pay authorisation applying to an employer in relation to more than one person.

        (6)    To avoid doubt, FWA may make an executive high pay authorisation at any time, including prior to the termination of any person’s employment.

536B Interpretation

                 In this Division:

employer includes:

             (a)    the employer’s enterprise;

             (b)    the enterprise of an associated entity of the employer.

giving a financial benefit has the same meaning it has in the Corporations Act 2001, and is to be interpreted in the manner specified in section 229 of that Act.

remuneration includes paying a salary or giving a financial benefit to a person, and includes any amount paid, promised or guaranteed in any form, including though consultancy agreements and grants of shares or other interests, and including any payment made upon resignation or retirement, however described.

These excellent amendments are intended to curb excessive executive remuneration.

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

The government does share the frustration that many in the Australian community feel regarding excessive executive pay, particularly for businesses that are underperforming. That is why, on 18 March 2009, the government asked the Productivity Commission to examine Australia’s existing regulatory arrangements for director and executive remuneration in corporate entities under the Corporations Act 2001. Reform will also tackle the regulation of termination pay, or so-called golden handshakes. The inquiry will be chaired by the Productivity Commission Chairman, Gary Banks, and Commissioner Robert Fitzgerald. Professor Allan Fels will also be appointed specifically for this inquiry. I know it does not go as far as the amendments that are proposed here. It is an excellent start, if I can say that, in dealing with this complex issue.

Question negatived.

The Temporary Chairman:

We will now move to Australian Greens amendment (8) on sheet 5746.

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

On a procedural point: it seems to me that, if other participants in this debate agree, we should allow a rearrangement of the order of amendments. There are the Australian Green amendments, then Senator Xenophon’s amendment and then a government amendment. It seems to me, reading the mood of the chamber, that it is most likely that the government amendment will get up. In those circumstances, if we were to allow Senator Ludwig to move his amendment and discuss that, that would obviate the other three.

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

Is that the wish of the committee? There being no objection to that, we will move to government amendment (1) on sheet PZ330, dealing with clause 394.

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

I move government amendment (1) on sheet PZ330:

(1)    Clause 394, page 329 (line 13), omit “7”, substitute “14”.

The government notes that many stakeholders do express concern that the seven-day application period may result in vulnerable workers, or workers who are unaware of the remedy, being deprived of the opportunity to have a legitimate claim considered by Fair Work Australia. In particular, the government acknowledges the concern that, in such a case, the exceptional circumstances requirement may be difficult to demonstrate. The government is therefore prepared to support an extension of the existing seven-day period to 14 days. The government does not support an extension to 21 days as it considers that this would undermine its policy of providing certainty to business and a speedy resolution.

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

I indicate coalition support for this but remind honourable senators that the position the Greens would seek to adopt with 21 days is to reinstitute that which appeared in certain legislation which they have had great fun in condemning. That terrible piece of legislation in fact allowed for 21 days to file for unfair dismissal, and the government went to the election on a promise of only seven days. I dare say we will not be hearing from the Australian Greens that this is a huge mandate that the government has got in relation to the number, as we heard in relation to the number that was supposed to apply to a small business. It is very interesting that numbers are vitally important and are subject to a mandate if they happen to agree with them. But if they do not agree with them, the mandate is out the window and, of course, it is the good sense of the Greens and Senator Xenophon and other people that we can then come to a compromise.

As I said in relation to the debate on the small business number, I think that the government would have had us snookered if they had been insisting on the totality of their mandate. But when they started to shift ground then of course the doors were opened. When we were in government, we as a government at all times thought that 21 days was the appropriate figure. It is great to see Senator Siewert and the Australian Greens embracing that figure and giving the former Howard government a big tick on that and in fact inviting the government to breach its election promise on numbers. However, I have had my two or three minutes of fun pointing these matters out and I indicate that we will be supporting the government’s amendment.

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

I am not going to rise to provocation—

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

Why not?

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

Because I will lose—it’s two o’clock in the morning! There are very few occasions, as I have remarked before, Senator Abetz, when we have in fact agreed.

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

It is spooky, I know.

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

It is very spooky and every time it happens I feel like I am in the twilight zone, particularly at two o’clock in the morning. However, I do agree that it was sensible to move straight to this amendment because, as you rightly said, it deals with the issues that we dealt with in our two amendments which related to this issue. One of our amendments, amendment (8), put the position that we believe the unfair dismissal timing should be moved to 21 days. We also had an alternative that, if that failed, we should go back to 14 days because we believe 14 days is better than seven days—although not, of course, as good as 21 days. So we will be supporting this amendment and I indicate that the Greens will withdraw our amendments (8) and (9). I will withdraw (10) as well, given the lateness of the hour, if this amendment succeeds.

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

I indicate my support for this amendment. I believe that seven days would have had unintended consequences. For instance, it could have been a combination of circumstances of some people not knowing their rights and not being able to lodge a claim in time. The likelier longer term consequence would have been for people to jump the gun and issue proceedings to preserve their position whilst they got legal advice, and I think that would have clogged up the system. I did privately suggest, somewhat cheekily, to Senator Ludwig that maybe 15 would have been the magic number for the government in relation to this, but I support the amendment.

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

The question is that government amendment (1) on sheet PZ330 be agreed to.

Question agreed to.

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

I withdraw Greens amendments (8), (9) and (10) on sheet 5746.

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

I am withdrawing my amendment.

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

Before I move further Greens amendments, there are a whole series of Greens amendments that relate to industrial action. I suggest that we have a cognate debate on all of those. I can highlight that these are amendments (25) to (43) on sheet 5729.

The Temporary Chairman:

Are you seeking leave to move those amendments together?

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

I seek advice because I have not gone through and looked at which amendments oppose and which do not. I was suggesting that we have a cognate debate on all of those and some of them will have to be moved separately.

The Temporary Chairman:

I am advised that you can move them all and we can have a cognate debate but we will put the questions separately.

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

by leave—I move Greens amendments (25), (28), (29), (33), (34), (37), (38) and (39) to (43) on sheet 5729 together:

(25)  Clause 409, page 336 (lines 17 and 18), omit “that are about, or are reasonably believed to be about, permitted matters”.

(28)  Clause 413, page 340 (lines 17 and 18), omit “or multi-enterprise agreement”.

(29)  Clause 418, page 347 (after line 3), at the end of the clause, add:

        (5)    As soon as practicable after making an order under subsection (1), FWA must attempt to conciliate the dispute giving rise to the industrial action.

The following two amendments are an alternative to (32).

(33)  Clause 425, page 354 (line 2), omit “must”, substitute “may”.

(34)  Clause 425, page 354 (line 2), after “suspending”, insert “for a period not exceeding 48 hours”.

(37)  Clause 443, page 364 (lines 20 to 22), omit paragraph (1)(b).

(38)  Clause 459, page 375 (lines 9 and 10), omit paragraph (1)(b).

(39)  Heading to Subdivision A, page 383 (line 4), omit “Protected industrial action”, substitute “Industrial action”.

(40)  Clause 470, page 383 (line 7), omit “protected”.

(41)  Clause 471, page 384 (line 4), omit “protected”.

(42)  Clause 471, page 384 (line 25), omit “protected”.

(43)  Clause 471, page 385 (line 26), omit “protected”.

I also indicate that the Greens oppose part 3-3 in the following terms:

(26)  Clause 409, page 337 (lines 7 to 10), subclause (4) to be opposed.

(27)  Clause 412, page 339 (line 9) to page 340 (line 6), to be opposed.

(30)  Clause 419, page 347 (lines 4 to 29), to be opposed.

(31)  Division 5, clause 422, page 350 (lines 1 to 16), to be opposed.

(32)  Clause 425, page 354 (lines 1 to 15), to be opposed.

(35)  Clause 426, page 354 (line 16) to page 355 (line 25), to be opposed.

(36)  Division 7, clauses 431 to 434, page 359 (line 1) to page 360 (line 12), to be opposed.

As much as I would like to think that I would be able to persuade the chamber of the strength of my arguments, I suspect that I will meet some resistance to these amendments. I would like to talk about the issues around industrial action and the issues that are contained in the amendments that we are seeking to move. As I have said, they all relate to industrial action and how we think that this legislation curtails workers’ ability to take industrial action. We also note that there are many provisions in this bill as it relates to industrial action that contravene—I dread to say it again, hoping I am not going to stir up Senator Abetz too much—the conventions in the ILO.

The Greens believe that workers should have the right to take industrial action in pursuit or in protection of their economic and social interests. That has always been a very clear part of the Greens industrial relations policies which we took to the election. We believe the right of a worker to withdraw their labour is a fundamental human right. We do not believe industrial action should be unlawful or attract civil penalties. Our position is supported by the ILO which argues:

The right to strike is one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests. These interests not only have to do with obtaining better working conditions and pursuing collective demands of an occupational nature but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers.

If we are turning our backs on our history with a rejection of arbitration, we need to recognise in our law the fundamental right of workers to withdraw their labour. Such a right is intrinsically linked to the freedoms of associations and expression and the right to peaceful assembly.

Any sense of fairness in the Fair Work Bill, we believe, is undermined by the denial of a fair and final dispute resolution process, coupled with the denial of the right to take industrial action. The provisions restricting industrial action in this bill are almost identical to Work Choices. So that corpse is not buried very deep; it is in a very shallow grave. The ILO were highly critical of the Work Choices provisions, criticisms that we believe apply equally to this bill. I have already articulated what the general report from the ILO Committee of Experts had to say about the numerous provisions of the Workplace Relations Act, and I will not go through those again.

It is extremely disappointing that this government has not seen fit to take this opportunity to bring Australia’s laws in line with the ILO conventions that we are signatory to. We have many amendments here that relate, for example, to pattern bargaining and multi-enterprise bargaining. I have touched on that issue previously. We also have amendments that relate to Fair Work stop orders, and we believe that we need to significantly boost the provisions in that area.

The Greens are also concerned about the suspension and termination of protected industrial action. We point out that in fact these provisions have been taken directly from Work Choices—so much for Work Choices being dead—which is why, unfortunately, we cannot just leave it buried. It is still alive; it is like a zombie. We generally oppose the provisions allowing or mandating Fair Work Australia to suspend or terminate protected industrial action, except in circumstances where the industrial action is endangering life or causing significant damage to the nation’s economy. These provisions put a further barrier in place for workers engaging in what is otherwise lawful industrial action. Employees can go through all the hoops in this bill and take lawful action, only to be stopped by one of the provisions that I just mentioned. The ILO has been consistently critical of these provisions as well.

We oppose the cooling-off period, in items 32, 33 and 34, but, in the alternative, seek to give Fair Work Australia greater discretion as to when to order a cooling-off period and to limit such a period to 48 hours. In item 35, we are completely opposed to the ability of third parties to make applications to Fair Work Australia to suspend otherwise lawful industrial action. The point of industrial action is to harm the other party in some way. In doing so, other parties may well be harmed. It is unacceptable for third parties to prevent lawful industrial action.

While we acknowledge the government is moving amendments to strengthen the test, we maintain our opposition to this provision, as we did to the Work Choice laws. Similarly, in item 36, we oppose the right of the minister to make a declaration terminating industrial action. If lawful industrial action needs to be terminated it should be done by Fair Work Australia in limited circumstances and not by a minister as a political action. Again, we oppose this provision in Work Choices and we do so, again, in this bill. We also have a series of amendments around protected ballot orders and we maintain our general opposition to protected ballot orders. We believe they are unnecessary and can hinder the right of employees to take industrial action. We do not believe the changes made by this bill to Work Choices provisions go far enough in addressing the need for a more streamlined process.

We also have amendments relating to the four-hour pay deduction for unprotected industrial action, regardless of how long the industrial action lasts. This is another provision that the government decided to keep from Work Choices. For example, workers could be 10 minutes late for work after a meeting or have a ‘stop work order’ meeting for half an hour and they would be docked four hours pay. There was also a very unfortunate case under Work Choices where construction workers were docked four hours pay for taking 10 minutes to pass a hat around for the wife of a colleague who had been killed. These examples demonstrate both the harshness and ridiculousness of this provision.

The committee inquiry also heard evidence about how the provision is counterproductive and likely to lead, in fact, to more sustained industrial action—as workers will be docked four hours anyway, they may as well take the time off. It is also counter to the proposition that workers should be paid for the work that they perform. In discussing this provision we should also be mindful that the definition of ‘industrial action’ is very broad, amounting to doing your job in a way that you do not customarily do it. Employers should also be worried about this provision. They face a civil penalty if they pay someone contrary to the provision in circumstances where it may be difficult to determine whether unlawful industrial action is being taken. Our amendments do away with the distinction between unprotected and protected action in relation to payments, as recommended by Professor Stewart. We believe these are logical and practical amendments that deal with the issue of industrial action.

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

These amendments would erode the government’s clear, tough rules on industrial action. On that basis we will not accept them.

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

The question is that Australian Greens amendments (25), (28), (29), (33), (34) and (37) to (43) be agreed to.

Question negatived.

The Temporary Chairman:

The question now is that subclause 409(4) and clauses 412, 419, 422, 425, 426, 431 to 434, 474 and 475 stand as printed.

Question agreed to.

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

Due to the time I moved them all together. I would have called a division on third-party harm, but given the lateness of the hour I did not. I would like to note that for the record. I move Australian Greens amendment (49) on sheet 5729:

(49)  Clause 596, page 470 (line 16), at the end of subclause (4), add:

      ; or (d)    is a lawyer from a community legal centre.

This amendment relates to community legal centre lawyers being exempt from leave requirements. I appreciate that we have already dealt with some of these issues in one of Senator Xenophon’s amendments, but we believe that community legal centre lawyers should also be given an exemption from leave requirements. The community legal centres recommended that their lawyers be exempt from the need to seek leave to appear before FWA. The Employment Law Centre of WA gave evidence to the Senate inquiry that, given the profile of their clients—particularly vulnerable workers—they should be exempt from this extra requirement. We were persuaded by their arguments and propose an amendment to exempt lawyers from community legal centres in the same way as lawyers from unions and employer organisations are exempt. We are concerned that the people represented by community legal centres—as I said, these are often the most vulnerable workers—do not have union representation. For example, the Employment Law Centre of WA does not represent any workers that have union representation. Community legal centres play a very important role in helping to protect vulnerable workers. We believe it is sensible that they should also be exempt from the leave requirement. They are essentially representing their clients in the same way lawyers from unions are. We would very strongly urge the government to accept this amendment. We believe that it is reasonable and practical to exempt the community legal centres from having to seek leave.

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

The bill does set out the factors that the FWA should have regard to in deciding whether to allow legal or other professional representation. On that basis, the government does not support the Senate committee’s recommendation and does not support this amendment. It is appropriate that the FWA have the discretion to determine the circumstances in which legal representation should be allowed.

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

The opposition also opposes this amendment. In opposing it, let me make the observation that it is regrettable—but it is a part of the system—that employer and employee organisations are automatically entitled to be represented whereas individuals are not. In the totality of the scheme, I do not think that is appropriate. The minister is right. Fair Work Australia does have the capacity or discretion to allow representation. I trust that they will allow that representation to be exercised on as many occasions as possible. There is no reason or rationale why only community legal centre lawyers should be exempt from leave. Why should it not be the same for a local suburban lawyer who sees the injustice in a particular case—be it for a small business or, indeed, for an employee—and says, ‘I feel so aggrieved on your behalf that I am willing to do this pro bono or on the cheap’? Why should it not be the case for any agent who could have the capacity to be paid but who decides to do it pro bono or on the cheap? Just because you are in a particular category, it does not justify the exemption being sought. Therefore, the opposition opposes this amendment.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments.