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

I rise to speak in relation to both the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. I indicate that I will be supporting both bills at the second reading stage. I will not canvass what occurred during debate on the Fair Work Bill, which passed the Senate in March, and I do not propose to repeat these comments, but I wish to make three quick contextual points before moving on to the provisions of these bills, in particular the transitional provisions bill. As I said in March, Work Choices is dead, and I am not mourning its loss. I see that the purpose of this transition bill is to ensure that the final nails are smoothly struck and unable to come loose.

I wish to again thank the Deputy Prime Minister, and her office, for the manner in which she negotiated the amendments to the Fair Work Bill. I am pleased that as part of these negotiations there were a number of amendments ensuring better protections for outworkers, extending time limits for lodging unfair dismissal claims, expanding flexible working arrangements for parents of disabled children and establishing a specialist information service for small and medium businesses. I still maintain that a better deal could have been struck for small businesses in relation to unfair dismissal claims, but that is now water under the bridge.

It is my understanding that the vast majority of these two bills have the support of both the government and the opposition, so I will limit my specific comments to the amendments foreshadowed by the opposition. The coalition’s first amendments refer to the interaction of the NES and transitional instruments. Their intent is to prevent potential doubling up where the same condition is met twice under different parts of the instruments. It seems that the coalition has taken the term ‘detrimental in any respect’ in schedule 3, part 5, item 23 to mean that line-by-line comparisons will be made in relation to terms. It argues a doubling up may occur where the combining of conditions under previous arrangements has resulted in the term being exceeded against one line and then, because other new arrangements do not align neatly, met again under another line.

My understanding of the government’s response to these amendments is that it has concerns that the amendments could undermine some baseline NES protections and could result in non-negotiable NES protections being traded off for additional pay, while it is argued that workers do not suffer detriment overall. The coalition does not accept this and states that its intent is to maintain all National Employment Standards, but only to avoid the doubling-up resulting from a strict line-by-line approach. This matter would seem to be one of differing interpretations and I will be seeking more detail from both parties prior to the vote.

In relation to the coalition’s amendments to introduce no increased labour costs and to change default superannuation, I have indicated to both parties that I am disinclined to support these amendments and this was a debate that was had in the course of the Fair Work legislation earlier this year. I am always open to listening to the evidence, but I provided my reasons for not supporting these previously and I will not reiterate them. However, I am interested to hear from both parties about the operation of proposed changes to the five-year transition from existing arrangements to the new awards. I have made my views known publicly: that I am very concerned about the possible impact of these changes on the South Australian restaurant and catering industry, on aged care and on the horticulture sectors, particularly in the Riverland, which is an area that has been doing it very tough because of the crisis in the Murray-Darling Basin.

I am pleased to note that the Deputy Prime Minister has acted to address issues relating to the restaurant sector and note that the sector has expressed its satisfaction at her actions. That was welcome because it took into account the circumstances of that industry, and I welcome the Deputy Prime Minister taking that stand. As a result of the changes that have been foreshadowed, literally hundreds if not thousands of jobs in South Australia have been saved. The issues facing the aged-care sector are much more complex, and I look forward to talking to the government about ways to address the looming aged-care crisis. Obviously, it goes beyond the Deputy Prime Minister’s portfolio. I note that the Deputy Prime Minister has instructed the AIRC to use the full five-year transition period with aged care, and this is a positive step. However, I believe that the unique arrangement in the aged-care sector where the government controls public funding and regulates capacity to raise private funding is one that is pertinent to award modernisation.

How do employers pay high salaries and improve conditions if the government ties their hands so that they cannot raise the money to do so? While the five-year transition may be helpful, there are important issues in aged care, with nurses’ salaries and the shortage of nurses contributing to lower standards of care in that sector. The government must take seriously the calls by the ANF and the aged-care providers for increased funding for aged-care nurses. However, I do not support a separation of the award, as the Deputy Prime Minister did with the restaurants and hotels. Rather, it is for the government to increase funding to enable the pay and conditions of aged-care nurses to match that of their colleagues in the hospital sector.

As I said, I will be taking these matters up with the government in the coming days, but let me now deal with the specifics of the coalition’s amendment to the five-year transition arrangements that have been foreshadowed by Senator Abetz. My understanding is that the coalition wishes to enshrine the five-year transition as a default position from which the AIRC can use its discretion for a shorter period if it sees fit. This effectively flips the situation in the legislation to where the AIRC decides the length of transition up to five years. However, I note that the Deputy Prime Minister has publicly strongly encouraged the AIRC to opt for the five-year transition.

My understanding is that the government has concerns that this coalition amendment will allow award modernisation to be put off for five years, in effect delaying some economic pain that will be experienced by some employers at the end of the period. It was my understanding from previous discussions in relation to the Fair Work Bill that a multi-level, graduated approach would be used over the five-year period to minimise the impact, to avoid that short, sharp shock, and to assist in the transition. I would like the government to provide specific details in relation to this in the committee stage to reassure me that a one-stage jump to the modern award arrangement could occur either initially, should the AIRC not heed the Deputy Prime Minister’s advice, or at the end of five years, if the government’s criticism of the coalition amendment stands.

Finally, there is the issue of representation orders. The coalition, through their amendments, want to clarify the conditions whereby representation orders can be made in the case of demarcation disputes, as well as a greater role for employers in these decisions. These are addressed in clause 137 of the bill. The coalition’s changes to clause 137(a) appear to be in response to a request for greater clarity from persons submitting to the committee inquiry, such as Professor Andrew Stuart, as well as in the dissenting report. I do not think that anyone could accuse Professor Stuart of being a friend of Work Choices. He has been a very clear voice and a very critical voice of Work Choices, and I think that he provides a robust analysis of these particular clauses.

As a principle, I support measures that produce greater clarity in legislation, and I think that represents responsible legislating. Further, I do not oppose in principle the possibility of an employer approaching Fair Work Australia to request an order if they are aware of disputes so that it is not so narrowly confined. I look forward to the government clarifying why these proposed changes are not desirable, particularly given the comments made by Professor Stuart. He indicated that he thought that there was real scope for change in relation to this to clarify what the position was. I think we need to heed the advice of Professor Stuart in relation to that.

However, I do not find that the rationale behind the changes to clause 137(b) quite as clear, especially as to why the views of an employer are vital to making an order. I remain to be convinced, in terms of the coalition’s position, in relation to that. In the case where an employer has had a sound relationship with a union in the past and would like that to continue, surely that would be the first thing Fair Work Australia would look at when making an order? Does it really need to be stipulated? I look to the coalition to clarify why this particular change is necessary, and I seek information from both parties on the practical implications of adopting these amendments in relation to representation orders.

In summary, I look forward to further discussing this with both the coalition and the government and putting an end to Work Choices but in a way that has fair transitional arrangements. It is acknowledged that we are in tough economic times, the worst economic circumstances in some 70 years. We need to take into account these changed economic circumstances. We need to take into account the way that the horticultural industry, particularly in South Australia, is doing it quite tough, as is the aged-care sector, which I have referred to previously. The sort of flexibility that the government has shown in relation to the restaurant and catering industry, which is welcomed, is something that ought to be replicated in other industries to allow for that transition and to avoid the short, sharp shock.

It is also important to consider a broader context, and I think it was summed up pretty well by Kerry O’Brien on the The 7.30 Report on 11 June. In prefacing an interview with the Deputy Prime Minister, he made the point that Australia may have just escaped falling into technical recession but, for the 100,000 people who have lost their jobs in the past nine months, the recession is here. My concern is that too many credible employers are saying that unless we have a transition that is relatively smooth and that is graduated, and unless you take into account the genuine economic circumstances in particular industries, you will see a spike in unemployment. People will be laid off, and that is something that needs to be avoided. It is a difficult balancing act but I believe it is a clear public policy imperative. I look forward to discussing this further with both the government and the opposition in the committee stage in respect of the amendments that will be moved and, no doubt, debated at length.

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

I seek leave to continue my remarks on the second reading debate on the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 prior to the dinner break.

Leave granted.

Other industries consider that they suffer the same as the restaurant and catering industry, and they want to know why they cannot have the same as what the restaurant and catering industry seem to have got. Requesting that something happen is, of course, no guarantee that it will happen, and that is what the Deputy Prime Minister has done, but that is all she has done. Professor Ron McCallum, a respected professor of law, is reported as having said that Ms Gillard has now got extraordinary powers. He said: ‘In the modernising process it is the minister that has the power to direct. This modernising process gives the power to the minister to order the commission to do things.’ Requesting that the commission should is no guarantee that the commission will. So it is open to the Deputy Prime Minister to order the commission to do things. Don’t just require that the commission should; order that they must. If the Deputy Prime Minister really meant her promise that costs will not rise for employers and that employees will not be disadvantaged, then she must order the Industrial Relations Commission to bring that about.

Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak to the government’s Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and a related bill. These bills form part of a suite of legislation aimed at restoring integrity and fairness to our industrial relations system. These are the foundations—integrity and fairness—that once underpinned our industrial relations system. These are the foundations that were seriously battered and, in fact, butchered by the previous government. Most Australians remember only too well the introduction of Work Choices by the former government and the extraordinary national discussion that took place in the lead-up to the last election. We know that Work Choices saw the removal of the pay and conditions standards of tens of thousands of Australian workers. It affected penalty rates, holiday loading, redundancy pay, 38 hours per week of ordinary time, and unfair dismissal protection for workers employed by an organisation with 100 or fewer employees. It is now widely acknowledged that Work Choices facilitated industrial relations changes which actively disadvantaged not only Australian workers but also their families. I received many letters and emails and had many face-to-face meetings with individuals and groups of workers and their partners who told of the devastation that the legislation had brought to their working lives and to the lives of their families.

When the Australian people went to the ballot box in November 2007 and cast their vote—their very deliberate vote—many would acknowledge that Work Choices was a factor in their consideration. The majority of those voters cast their ballots in favour of our Forward with Fairness policy, which means fairness for workers, fairness for employers and fairness for families. I do not propose to revisit the Work Choices debacle at any length this evening. Those dark days have gone. We look to the years ahead; we look to the future. The dark clouds have lifted, but we must remain vigilant. Despite those opposite acknowledging that Work Choices is history, it is apparent that many of those opposite still harbour, in their heart of hearts, lingering memories of the way things used to be—of the way things were. They cherish furtive ambitions to revive, in some coalition-led future, that draconian scheme, in partnership with the Australian people. Labor will work to ensure that this does not happen.

This government is fulfilling its commitment to the electorate—the electorate that rejected Work Choices and endorsed a return to fairness and balance in the workplace. It is a return to the idea of the civilised society that has underpinned our industrial relations system—with the exception, of course, of those few aberrant years prior to the last election when we lived under Work Choices. The civilised society has been prominent in Australia since the Harvester decision, in which, in 1907, the President of the Commonwealth Court of Conciliation and Arbitration, Sir Justice Higgins, set the first minimum weekly wage. It was the Harvester judgment that ensured that a worker received enough remuneration to provide decent food, shelter, water and frugal comforts for his family. It was the Harvester judgment that said that every Australian was entitled to every single one of these standards every day of their lives and that if we as a nation did not endorse this we could not claim to be a civilised society. With our Forward with Fairness legislation, we return to a civilised society.

The legislative architecture for our Forward with Fairness scheme includes the bills before us now. It is the product of consultation with a comprehensive range of stakeholders, including employee and employer organisations, small business, industry, and state and territory governments. Amongst others, it included consultation with the ACTU and its affiliates, the Australian Chamber of Commerce and Industry, the Australian Human Rights Commission, the Australian Industry Group and small business organisations. The full list of stakeholders is of course very lengthy. It represents levels of consultation and of inclusiveness in our approach that were, so patently and blatantly, absent in the approach of the previous government.

The Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 contains transitional and consequential provisions intended to operate with the Fair Work legislation. This and the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 will assist workers and business to move to the new workplace relations system with ease. This bill also finally repeals the current Workplace Relations Act, save for schedules 1 and 10. The act will be renamed The Fair Work (Registered Organisations) Act 2009 in light of the import of schedule 1. It will enshrine the application, from 1 January 2010, of minimum wages and National Employment Standards for all workers within the national system, including those party to instruments entered into before the new system starts.

The National Employment Standards ensure that all workers will be entitled at the very least to: the minimum rate of pay as set out in a modern award, from 1 January 2010; personal, carers and community service leave; the right, under certain circumstances, to request flexible working conditions; notice of termination; redundancy pay where 15 or more workers are employed; long service leave; and public holidays. These will apply to all workers from 1 January 2010, and will prevail in circumstances where a transitional instrument is detrimental by comparison. There is provision for the phasing in of minimum wages in certain exceptional circumstances. By the same token, the bill ensures that employees’ take-home pay will not be adversely impacted by transition to a modern award. And Fair Work Australia will be empowered to make orders to remedy any reduction to take-home pay for both individuals and groups.

The bill also sets out protocols for the treatment of existing instruments—namely Australian Workplace Agreements—and for award based instruments such as unmodernised awards and so on, once they are replaced by modern awards. The provisions will also allow parties to enterprise awards, or notional agreements preserving state awards derived from state enterprise awards, to seek the modernisation and integration of their award into the modern system. Pay scales, minimum wage guarantees and related minimum entitlements will be protected until 1 January 2010 when the National Employment Standards and modern awards will commence.

Also addressed in the bill are transitional bargaining and agreement-making arrangements. This means that workers presently party to individual statutory agreements will be able, by agreement with employers, to enter into a conditional termination agreement which will allow those workers to take part in collective bargaining. Once a new enterprise agreement is approved, the current agreement will cease. Upon its commencement, the bill will abolish the Workplace Ombudsman whose functions will then be performed by the Fair Work Ombudsman. Fair Work divisions will be established in the Federal Court and the Federal Magistrates Court. Fair Work inspectors will have new powers to ensure compliance with the new rules.

The bill amends schedule 1 and confers Fair Work Australia with the power to make representation orders with regard to union demarcation disputes. In addition, state registered organisations that meet particular criteria will be recognised in the new system whilst still retaining their state registration. With reference to modern awards, the new system will trim down the number of existing awards and make them simpler to locate, read, interpret and apply. Anomalous state award conditions will be phased out over a five-year period, after which they will adhere to the national standard. This will ensure a full five-year period for employers and employees to adjust to the new modern award standard. Modern awards will be reviewed two years after commencement to make sure that they are operating satisfactorily. Thereafter they will be reviewed every four years. Award modernisation represents a practical and long overdue reform of our industrial relations instruments.

The provisions set out in this bill have been given serious consideration, providing genuine opportunity for all parties to have their input. They provide certainty for all parties with an interest in the employment contract. They are fair. The provisions provide employees with a fair safety net of employment conditions that cannot be stripped away. Ultimately, the provisions in the bill provide a right to challenge a harsh, unjust or unfair dismissal for employees. They have as their basis good faith and goodwill, and the endorsement of the Australian people. As I said in this place on a number of occasions, Work Choices reduced people—real living working people with families, relationships and community bonds—to factors in an equation based on the politics of division. This bill and related Fair Work legislation puts an end to that sorry chapter in our national life. I commend the bills before us to the Senate.

Mark Arbib (NSW, Australian Labor Party, Minister Assisting the Prime Minister for Government Service Delivery) Share this | Link to this | Hansard source

At the 2007 election Labor promised to get rid of Work Choices and create a new, fair and balanced workplace relations system. The Fair Work Act 2009, which received royal assent on 7 April, delivers on that promise. The two bills being debated cognately today, the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009, provide for the sensible and measured transition of employers and employees into the new system. The new workplace relations system created by the act starts on 1 July 2009 and will be fully operational by 1 January 2010. Obviously, given those commencement dates, the speedy passage of the legislation is critical. The new system will balance the needs of employees and employers. This balance reflects an unprecedented degree of consultation by this government with employee and employer representatives, as well as with state and territory governments. Representatives from these groups have provided valuable feedback at meetings of the Committee on Industrial Legislation, which examined the two bills before us today, as well as having examined the Fair Work Act itself.

At all stages in developing and drafting a new framework we have responded to legitimate criticisms and issues raised by all sides. No side got everything it wanted, but the result of our consultation approach is that we have succeeded in balancing fairness and flexibility to ensure that Australia will be competitive and prosperous without compromising workplace rights and guaranteed minimum standards. When introducing the then Fair Work Bill 2008 into the House of Representatives on 25 November 2008, the minister indicated that the government would introduce separate legislation to set out transitional and consequential changes to ensure a smooth, simple and fair transition for the new system while providing for certainty in employment arrangements. These transitional and consequential changes are provided for in these two bills now under consideration. The two bills, once enacted by the parliament, will operate with the Fair Work Act and will transition employees and employers into the new workplace relations system simply and fairly.

Let me remind the Senate of the key provisions of the bills. The Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 repeals the current Workplace Relations Act 1996 other than schedule 1, which deals with registered organisations, and schedule 10, which deals with transitional registered organisations. The Workplace Relations Act will then be renamed the Fair Work Registered Organisations Act 2009. The bill provides for the application of the 10 national employment standards and minimum wages to all national system employees from 1 January 2010, including those covered by instruments made before the commencement of the new system. The bill ensures employees’ take home pay is not reduced as result of any transition to a modern award from 1 January 2010. The bill sets out rules in relation to the treatment of existing industrial instruments in the new system and includes arrangements to enable bargaining under the new system to commence in an orderly way.

The bill includes arrangements for the transfer of assets, functions and proceedings from the Workplace Relations Act institutions to Fair Work Australia and the Fair Work Ombudsman. The bill also includes consequential amendments to create the fair work divisions of the Federal Court of Australia and the Federal Magistrates Court of Australia. On 19 March 2009 the Senate referredthe Fair Work (Transitional Provisions and Consequential Amendments) Bill to the Senate Standing Committee on Education, Employment and Workplace Relations, which reported back on 7 May. The government carefully considered the Senate committee’s report, as well as the detailed submissions, and as a result it proposed a number of technical amendments to improve the bill when the House of Representatives considered its provisions.

These amendments included the following: amendments ensuring special low-paid bargaining determinations are accessible to workplaces that no longer have an operating collective agreement, providing the other criteria are satisfied; amendments preserving the interaction between transitional instruments and state and territory laws; technical amendments ensuring that the transitional arrangements in place for outworkers protect their existing terms and conditions and that outworker unions can properly enforce outworker entitlements; and amendments ensuring registered employee and employer organisations are able to represent their members in the fair work divisions of the Federal Court and the Federal Magistrates Court. The government’s intention through the consultations and through the Senate committee was to seek views in order to improve the bill, and those amendments were duly brought forward and are represented by the amendments I have just described.

I can foreshadow a small number of government amendments will be moved to the bill. In relation to protected action ballots, the bill currently provides that protected action ballot orders and authorisations under the Workplace Relations Act are of no effect from 1 July 2009. The government proposes an amendment to allow limited preservation of Workplace Relations Act protected action ballot authorisations after 1 July 2009 on application to Fair Work Australia. Strict criteria will need to be met before Fair Work Australia may make such an order. In relation to registered organisations, the government proposes a number of amendments to further assist state and federally registered organisations to rationalise their affairs and simplify their operations across multiple jurisdictions. The amendments include changes to the provisions allowing federal organisations to extend their eligibility rules to reflect the broader rules of an equivalent state association, and ensure that settled demarcations are not reopened by allowing Fair Work Australia to make a federal representation order that reflects a state order in situations where a federal organisation has altered its eligibility rules to reflect those of an equivalent state association.

In relation to an amendment by Senator Fielding regarding small business employers, the government proposes an amendment to provide a transitional definition of ‘small business employer’—that is, an employer with fewer than 15 full-time equivalent employees—until 1 January 2011 for unfair dismissal purposes. This amendment gives effect to the agreement reached between the government and Senator Fielding to secure the passage of what is now the Fair Work Act. The calculation of the number of full-time equivalent employees is based on the number of ordinary hours of the employer’s employees over the previous four weeks. Where an employee has been on leave associated with the birth or adoption of a child for more than four weeks, their hours of leave are excluded from the calculation.

I now turn to the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. The bill marks the next step in the creation of a national workplace relations system for the private sector in Australia—a key election commitment of the government. The bill amends the Fair Work Act to allow states to refer matters to the Commonwealth with a view to establishing a uniform national workplace relations system for the private sector. In addition, the bill makes transitional arrangements for Victorian employees and employers who are currently covered by the Workplace Relations Act as the result of an earlier referral of powers and who are very shortly expected to be covered by a new referral from Victoria. On 4 June 2009 the Fair Work Bill was introduced into the Victorian parliament. The bill provides a text based referral of power to underpin the application of the Fair Work Act to all Victorian employers and their employees. The bill has now passed through both chambers of the Victorian parliament and is due to receive royal assent later this month. This will ensure that there are no interruptions in coverage for the working people and businesses of Victoria.

Victoria is the first state that will be referring its powers under the bill. I am very pleased to note, however, that South Australia and Tasmania have expressed their intention to join Victoria in making a text based referral of powers on workplace relations matters to the Commonwealth and are now negotiating their final details. Queensland has indicated in-principle support for joining a national workplace relations system for the private sector, subject to a number of key issues being resolved. The bill establishes a framework that can be adapted in future Commonwealth legislation to accommodate anticipated future referrals from other states. We are continuing to work cooperatively with the other states to achieve a uniform workplace relations system for the private sector. Over the coming months, we anticipate that they will choose to become participants in implementing this crucial national reform.

The bill also makes transitional and consequential arrangements to 67 Commonwealth acts which refer to parts of the Workplace Relations Act that will be repealed by the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. The bill replaces those references with references to corresponding concepts, institutions and instruments in the Fair Work Act. Together, these two bills now before the House represent the final batch of legislation needed to complete the transition to Australia’s new workplace relations system. With the repeal of the workplace relations act and as a result of these measures, we will see the final removal of the unfair Work Choices system, which the Australian people rejected when they rejected the Liberal Party at the last election. The death rites of Work Choices are now being administered and we are getting ready to see the Fair Work Act spring into life. The sensible and practical measures in the Fair Work (Transitional Provisions and Consequential Amendments) Bill will help to pave the way for the smooth and effective delivery of a balanced, modern workplace relations system for Australia.

The Fair Work (State Referral and Consequential and Other Amendments) Bill offers clear proof that the government is well on its way to achieving, through cooperation and consultation with state governments, a uniform national workplace relations system for the private sector in Australia—quite a reform. The arrangements set out in these two bills will ensure that the transition to the new workplace relations system is seamless. The new national system is good news for Australia because it is based on fairness for working people, flexibility for business and the promotion of productivity and economic growth for the future prosperity of our nation. That is what the Labor government promised the Australian people at the 2007 election and that is what we are delivering. Given that the Australian people repudiated the opposition’s industrial relations laws at the last election, we are hoping opposition senators do not try to clutch onto Work Choices through procedural delay and tricks but actually fulfil the voice of the Australian people and expedite passage of this legislation so that our new system can commence on time on 1 July this year and we can finally see the end of Work Choices. I commend the bill to the House.

Question agreed to.

Bills read a second time.

Ordered that consideration of these bills in Committee of the Whole be made an order of the day for the next day of sitting.