Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 and a related bill and is considering opposition amendment (3) on sheet 5817, moved by Senator Abetz. The question is that the amendment be agreed to.

Question negatived.

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

I move amendment (2) standing in my name on sheet 5829:

(2)    Schedule 5, item 2, page 58 (after line 23), at the end of subitem (5), add:

   ; and (c)    the likely effects on the relevant industry or industry sector of any modern award that the Commission is considering, or is proposing to make, including on productivity, labour costs and the regulatory burden on businesses.

This amendment relates to award modernisation. I alluded to this amendment last night. When Senator Abetz moved the coalition’s amendment I indicated that I could not support that because I believed that an alternative approach would be better in relation to considering the various issues that are of concern to the coalition and, indeed, to the government.

This amendment would also require the AIRC to consider the likely effects on the relevant industry or industry sector of any modern award that the commission is considering or is proposing to make, including on productivity, labour costs and the regulatory burden on business. I think that covers all those issues of concern that the coalition considered but in a way that is consistent with parts A and B of the clause. This is about taking into account, for instance, the concerns of the horticulture industry. It provides additional guidance in relation to conditions that should be considered in the transition on to modern awards. In relation to horticulture, for instance, my office has had extensive discussions and I have had discussions with the SA Riverland horticulture industry and this amendment, I think, would fairly take into account the concerns of the industry whilst protecting the interests of workers in that industry. I urge my colleagues to support this amendment. I think it would take up some of the concerns of the coalition but in a way that is entirely consistent with the structure of the current legislation.

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

The government notes that Senator Xenophon’s amendment is largely covered by factors that are already included in part 10A of the Workplace Relations Act 1996, which is being preserved by the bill. The language in the amendment is also consistent with the provisions in section 134 of the Fair Work Act, ‘The modern awards objective’. Therefore the government has no objection to the passage of this amendment.

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

We had a discussion on this last evening. My contribution to that might have been described as, in effect, a cognate debate on these two matters. I indicated the coalition’s position: we thought our amendments were better. Senator Xenophon did not see his way clear to agreeing. The minister said only last night that he could not find his way clear to supporting us, and I have a funny feeling that, despite being given the benefit of a new morning, he has not changed his mind overnight. In the circumstances, we say of Senator Xenophon’s amendment: we are not sure that it is going to do any good, in reality, but it definitely will not do any harm and, as a result, we are happy to support it.

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

The Greens are not inclined to support this amendment, in fact, for the reasons that the government articulated. We think the concerns that Senator Xenophon has raised and the issues that this amendment addresses are already covered in the legislation, so we are not inclined to support the amendment.

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

I just want to take issue with Senator Abetz saying that he does not think this will do much good. The coalition amendment moved last night and voted on this morning talked about issues of profitability to be taken into account—I take it that that is correct. This amendment takes into account issues of productivity, labour costs and the regulatory burden on businesses. With respect to Senator Abetz, I think it covers broader grounds and it encompasses the concerns of the coalition. As Senator Arbib, the Minister for Employment Participation, said, it is already reflected in part in other parts of the legislation. But by putting it here, fairly and squarely, it is a matter that must be considered in the award modernisation and the transition process.

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

I do not want to delay the debate too long, but I am astounded that the good Senator Xenophon tells us this morning that his amendment in fact covers broader grounds, because I thought last night the argument against our amendment was that it went too far and his was cast more narrowly and was therefore more acceptable to the government. It is amazing what a good night’s sleep can do to us in the Senate chamber! Senator Xenophon, you have not convinced me with your logic, but you still have my vote.

Question agreed to.

I move opposition amendment (4) on sheet 5817:

(4)    Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 4—Relief from increased labour costs

14  Part 10A award modernisation process is not intended to result in an increase in labour costs

(1)    The Part 10A award modernisation process is not intended to result in an increase in labour costs for employers.

(2)    An employer’s labour costs in respect of an employee or outworker is the actual cost to the employer to employ the employee or engage the outworker:

             (a)    including wages and incentive-based payments, and additional amounts such as allowances and overtime; and

             (b)    disregarding the effect of any deductions that are made as permitted by section 324 of the FW Act.

Note:                Deductions permitted by section 324 of the FW Act may (for example) include deductions under salary sacrificing arrangements.

(3)    An employer suffers a modernisation-related increase in labour costs in respect to any employee or outworker if, and only if:

             (a)    a modern award made in the Part 10A award modernisation process starts to apply to the employer when the award comes into operation; and

             (b)    the employer’s labour costs are higher after the modern award comes into operation than the employer’s labour costs were immediately before the modern award came into operation; and

             (c)    the increase in labour costs is attributable to the Part 10A award modernisation process.

15  Orders remedying an increase in labour costs

(1)    If FWA is satisfied that an employer, or a class of employers, to whom a modern award applies has suffered a modernisation-related increase in labour costs, FWA may make an order (a relief from increased labour costs order) varying particular terms of the modern award as they relate to the employer or the class of employers that FWA considers appropriate to remedy the situation.

(2)    FWA may make a relief from increased labour costs order on application by:

             (a)    an employer who has suffered a modernisation-related increase in labour costs; or

             (b)    an organisation that is entitled to represent the industrial interests of such employer.

(3)    FWA must not make a relief from increased labour costs order in relation to an employer or a class of employers if:

             (a)    FWA considers that the modernisation-related increase in labour costs is minor or insignificant; or

             (b)    FWA is satisfied that the employer or employers have been adequately compensated in other ways for the increase, such as through increased productivity or flexibility.

(4)    FWA must ensure that a relief from increased labour costs order is expressed so that it does not apply to an employer unless the employer has actually suffered a modernisation-related increase in labour costs.

16  Relief from increased labour costs order continues to have effect as long as modern award continues to cover the employer or employers

A relief from increased labour costs order in relation to an employer or a class of employers to whom a particular modern award applies continues to have effect (subject to the terms of the order) for so long as the modern award continues to cover the employer or employers, even if it stops applying to the employer or employers because an enterprise agreement starts to apply.

17  Inconsistency with modern awards and enterprise agreements

A term of a modern award or an enterprise agreement has no effect in relation to an employer to the extent that it is less beneficial to the employer than a term of a relief from increased labour costs order that applies to the employer.

18  Application of provisions of FW Act to relief from increased labour costs orders

The FW Act applies as if the following provisions of that Act included a reference to a relief from increased labour costs order:

             (a)    subsection 675(2);

             (b)    subsection 706(2).

This amendment is to add a part. The amendment seeks to insert a new provision that provides the equivalent employer version of the take-home pay orders outlined in the preceding part of the legislation. The provision recognises and seeks to enshrine a provision within the existing award modernisation request that promises no increase in costs of labour. The provision details what a labour cost may include and describes the circumstances under which an employer may suffer an increase in labour costs related to the transition to a modern award. When Fair Work Australia finds that an employer has suffered a modernisation related increase in labour costs, it is empowered to vary the particular instrument as it applies to that particular employer. Such an order remains in effect while the modern award continues to cover the employer.

I will just indicate how this amendment might work. Where a particular business can demonstrate that it will suffer an increased cost as a result of transitioning to a modern award, it may seek assistance from Fair Work Australia. Fair Work Australia must be satisfied that any costs are due to the operation of the modern award and that no other compensation exists for that increased cost—for example, more flexibility. Fair Work Australia may vary the modern award as it relates to the business in a manner that it deems appropriate. This is similar in nature to the incapacity-to-pay provisions relating to redundancy pay that have previously existed in many awards and other state industrial legislation.

It is expected that this avenue will be rarely used and will therefore not impinge on the universal rollout of common rule federal awards. However, where business viability is jeopardised, an avenue can exist for relief. This allows further relief from increased costs in addition to the five-year default phase-out of state based differences, as will be sought by our amendment (6).

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

The Greens are opposing this amendment. I am sure that comes as no surprise to the opposition. We think this amendment fundamentally undermines the award modernisation process and, more importantly, the amendment means that employers will never have to provide their employees with the benefits of the new safety net. The requirement for the transition provisions allows for increased costs to be phased in, and we believe that is an adequate measure to take into account the consequences of the award modernisation process for business. Therefore we will not be supporting this amendment.

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

The government is also opposing the amendment. The government considers that modern award specific transitional arrangements should be developed by the AIRC after consideration of submissions with interested parties. This process is already underway. Initial submissions on transitional arrangements in modern awards were due on 29 May 2009.

The government has made a detailed submission to that proceeding and has requested the commission to deal with transitional provisions in a flexible way that best meets the requirements of the relevant industry or occupation covered by the modern award; to work closely with the parties, as they are best placed to deal with the intricacies of their industry; and to utilise the full five-year phasing in period in a flexible way—for example, in some industries, a shorter phasing in period may be appropriate, while in others the commission could even consider deferring transition to certain conditions. The government submission encourages the commission to work closely with the parties to examine any cost impact and to take account of the economic circumstances facing the industry. The submission recognises that the representatives of employers and employees are best placed to develop transitional arrangements that take account of any particular characteristics of their industry or occupation and that balance employer and employee interests.

The opposition has completely ignored the fact that, as well as the five-year phasing in provision in the award itself, there is already in this bill the capacity for employers to manage their way through exceptional circumstances. Individual employers covered by transitional agreements may apply to Fair Work Australia to phase in any changes to base rates of pay that result from the making of a modern award. They can make the application if it is necessary to ensure the ongoing viability of their business. This is in schedule 9, part 4, clause (14).

Question negatived.

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

The next amendment on the running sheet is in the name of the opposition. Given the singular lack of success that I have been having with opposition amendments, Senator Fisher is going to be moving this one on behalf of the opposition!

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

I move opposition amendment (5) on sheet 5817:

(5)    Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 5—Factors requiring award modernisation request

Workplace Relations Act 1996

19  After section 576C

Insert:

576CA  Minister must make award modernisation request

        (1)    If the Minister has made or varied an award modernisation request to accommodate one industry based on any of the factors set out in subsection (2), the Minister must also make or vary an award modernisation request ordering the Commission to create a modern award to accommodate every other industry in which any of those factors exist.

        (2)    The factors are:

             (a)    the potential for the modern award to impact upon continuing business viability;

             (b)    low profit margins;

             (c)    peak operating times;

             (d)    limited capacity to bear significant cost increases;

             (e)    different business models and streams of revenue from other activities;

              (f)    the labour-intensive nature of the industry;

             (g)    high labour costs as a proportion of total expenses;

             (h)    high award reliance.

In doing so, I will provide some explanation as to what the amendment will achieve and why the opposition considers it to be necessary. The government’s well-publicised promise to ensure that the award modernisation process would not increase costs for business and would not disadvantage employees has been unkept in the most spectacular fashion thus far. This amendment goes directly to the heart of that promise. This amendment will provide that, if the minister has varied an award modernisation request to accommodate one industry based on a number of factors listed in the amendment, the minister must also make a similar request ordering the commission to create a modern award to accommodate every other industry in which any of those factors exist. It should be no surprise to the government that the factors listed in subsection (2) of the amendment are identical to the factors upon which the Deputy Prime Minister says she has relied in justifying her carve-out of the restaurant and catering sector, the factors listed in her letter to the President of the Industrial Relations Commission of 29 May as the reasons for which the government has appropriately seen fit to create a special case for the restaurant and catering sector.

Why is this amendment necessary? You would think that the fabric of the so-called Fair Work Act, together with the good work of the Australian Industrial Relations Commission, would deliver the government’s promise of award modernisation not increasing costs for business and not disadvantaging employees. But the stream of traffic to preceding Senate committee inquiries considering the matter and the stream of traffic to my office and my colleagues’ offices demonstrates that this is not so. The stream of traffic demonstrates that the first port of call, the Australian Industrial Relations Commission, working on the fabric of the Workplace Relations Act, is not responding to enacting the government’s promise and is not able, apparently, to respond to the concerns of business. Business gives us concerns along the following lines. A grape producer from South Australia, Mr John Harvey from Chalk Hill Wines, says that the proposed transfer of grape growing from the Federal Court horticultural award to the wine industry award, in his case:

… will increase our costs of production, further reduce our competitiveness and market share and force existing growers out of the sector.

Derek Cameron, Chairman of the McLaren Vale Grower’s Council, said:

The change to that wine industry award in its current form will seriously increase costs associated with employment and contracting staff, likely to cripple an industry at a time when it is struggling with oversupply and low grape prices.

Joch Bosworth, of Edgehill Vineyards, said:

The movement to the wine industry award in its current form greatly increases costs associated with night vineyard spraying, grape harvesting, contracting work.

Neil Delroy, of Agribusiness Research and Management, said:

The wine industry award—

and this goes right to the point—

is essentially designed for the processing, packaging and retail of wine, and does not provide the flexibility we need in agricultural production enterprise to have when we have to manage the vagaries of the seasonal nature of production and the vagaries of weather, plus pests and diseases.

Vineyard labour costs currently represent approximately 50 per cent of the total site cost for grape growing.

There is very little negotiability for the price of the final product we produce in this industry.

We have completed a forward labour cost projection for one of our operations based on the proposed award and anticipate a minimum increase to our labour costs of 7.1 per cent.

Those are the sorts of concerns that are being relayed by the industry. They are the concerns that have been put in testimony by this industry to the Australian Industrial Relations Commission in their case in justifying their argument as to why the wine grape industry should not be coupled in one and the same award with the wine industry. After all, they have some different models because there may be different revenue streams under consideration. I will come back to that shortly.

It is clear that the industry needs relief in a way that is not being provided by either the current act or the Australian Industrial Relations Commission. So where to then? One would think that the Minister for Employment and Workplace Relations might be able to provide some assistance. Indeed, the minister would have us believe that she has provided some assistance to the restaurant and catering sector. The Minister for Employment Participation may shortly choose to respond to my question of last night about the extent of the consultation that the government says it is undertaking in respect of the wine grape sector. But, when the industry has been to the minister, it has not necessarily found even a response forthcoming from the minister, let alone relief. In terms of the case that the industry has put to the Industrial Relations Commission, Mr Mark McKenzie, the Executive Director of Wine Grape Growers Australia, for example, tells me that, despite multiple submissions from his association about the traditional length of independent wine grape production with horticulture award provisions, ‘The full bench of the commission has decided to parcel us up with the wine industry award instead.’ So, as I reminded Senator Arbib last night, wine grape producers have not been conferred with by the government. I am sure he will get back to me in that respect.

Similarly, Mr Neil Delroy told me he found Minister Arbib’s response in question time a couple of days ago suggesting a process of extensive consultation ‘interesting’. He said:

I have had no response at all from the email I sent to the Deputy Prime Minister or the agricultural minister. I have not heard of any consultation with the industry whatsoever from the Deputy Prime Minister’s office.

So the industry say they are not even getting a response, let alone relief, when they go to the Deputy Prime Minister. The existing act, the existing recourse to the Australian Industrial Relations Commission and, one would think, the prospect of some relief from the minister have not delivered and the government has not delivered on its promise to not increase costs for business and to not disadvantage employees through the award modernisation process. It is pretty clear that the government has not got a policy, has not got a plan and has not got a process to deliver on its promise.

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

But they’ve got ideology.

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

They do indeed, Senator Abetz. This amendment is to ensure that the government, through its legislation, has a transparent plan and that the Industrial Relations Commission will be required to deliver on it. How this amendment will achieve that is quite simple. The factors listed in the amendment and the factors to justify the variation of award modernisation request are the very factors listed by the Deputy Prime Minister in her letter to the President of the Australian Industrial Relations Commission of 28 May. Those are the very factors that she considers, on her own say-so, justify special treatment of the restaurant and catering sector. Other industries have the same. The government knows they deserve the same. This amendment is about requiring the commission to deliver them the same. It does that by going one step further than the Deputy Prime Minister’s letter in respect of the restaurant and catering sector and one step further than the Deputy Prime Minister’s variation of her award modernisation request.

The Deputy Prime Minister would have us believe that for the restaurant and catering sector—according to her covering letter—she has amended her request to require the commission to create a separate modern award for the restaurant and catering industry. The fine print of the administrative direction, the variation of award modernisation request—as it is so beautifully called—says:

The Commission should create a modern award covering the restaurant and catering—

sector. The covering letter has the Deputy Prime Minister saying that she is amending her request to require the commission to create a separate modern award, yet the very request says:

The Commission should create a modern award …

One would have thought the commission would not be so unwise as to not create a separate modern award for the restaurant and catering sector, but there is more. She goes on to say that she is amending her request to:

… clarify the government’s intention that the award modernisation process should take account of the specific operational requirements of the restaurant and catering industry.

Specifically, she says:

My request now requires the commission to establish a penalty rate and overtime rate that appropriately recognises the restaurant and catering industry’s core trading times and the labour intensive nature of work in the industry.

That is in reference to her request, and she now uses the word ‘requires’. Her request says:

The development of such a modern award should establish a penalty rate and overtime regime that takes account of operational requirements—

et cetera. Her letter says ‘require’; her direction says ‘should’. ‘Should’ is not ‘must’. ‘Should’ is no guarantee that there will be this outcome. The opposition’s amendment appropriately provides:

If the Minister has made or varied—

her administrative direction in respect of a industry for—

any of the factors—

listed in the amendment—

the Minister must also make or vary an award modernisation request ordering the Commission to create a modern award to accommodate every other industry in which … those factors exist.

This should be no surprise to the government because, as the esteemed Professor Ron McCallum has publicly pointed out to the government:

In the modernising process, it’s the minister that has the power to direct …

It was reported that he said:

Ms Gillard now had extraordinary powers and was using them more than he had expected.

He said:

… this modernising process gives the power to the minister to order the commission to do things.

This amendment will allow her, in appropriate circumstances, to require the commission to do things where appropriate—that is, because a particular industry deserves special treatment because of special factors that they share in common with the very industry, the restaurant and catering sector, that Ms Gillard has already considered appropriate for some form of protection from the brunt of her award overhaul. The opposition urges the Senate to support this amendment. Minister, I look forward to your answer to my question.

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

I have had a look at this amendment and am inclined to support the opposition’s position on this because the government has realised there is a problem. Quite clearly, if there was not a problem, the Deputy Prime Minister would not have written to the Industrial Relations Commission in the way she did. The problem that the government has now is they have singled out one industry by saying that it is special. Where do you draw the line? Where do you draw the line with the next industry that comes along and says, ‘Hey, we are special’?

This is the dilemma that you have. The problem that I have is that the Deputy Prime Minister has written to the Industrial Relations Commission on 29 May, a copy of which I have. It is a fairly detailed letter and it quite clearly has raised a legitimate concern in the area of restaurants and caterers, but where do you draw the line? Where do you draw the line to say that they are special and another group is not? This is the problem or dilemma that you are going to have, so I think that what the opposition has put forward here has got some merit. Unless you folks can come up with a better argument than what I have seen publicly, I think it really does deserve support. What about the industries that have the same problems or similar issues? Where do you draw the line? I have trouble not supporting the opposition’s amendment. I think it is a reasonable submission, a reasonable amendment, and I am inclined to support it.

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

The problem you face, Senator Fielding, by going down this path is that you invite every industry, every subpart of every industry and every employer to say, ‘My circumstances are somewhat different to everybody else’s and I cannot fit into the global picture.’ For years—and you would have heard this too—the opposition got up in here, railed against us and said: ‘The award system is terrible. There are thousands and thousands of awards. There are too many.’ This government, as a part of modernising a fair industrial relations system, has gone through this very thorough, complicated and difficult process, which is being managed very well by the Australian Industrial Relations Commission, to significantly reduce the number of awards. I think it is good for industrial relations in this country and good for the industrial relations system.

It is true that a number of industries and a number of subparts of industries are being put into modernised awards or different awards, but the process of consultation is incredibly thorough. People get to make their submissions and argue with the Australian Industrial Relations Commission, which then takes that on board and puts out draft modern awards. The process of consultation then begins. It is true that in some specific cases, such as the restaurant and catering industry in particular, parties have managed to make a significant case for the Minister for Employment and Workplace Relations to intervene and to say to the Australian Industrial Relations Commission, ‘You need to do that.’

It is clear the minister has that power. If cases can be made in other industries then I am sure the minister, using that power, will also accede to that. What you do not want to do is simply put a legislative framework in place which invites everybody to mount that argument whether it is meritorious or not. I come back to the point that what that will do is invite everybody to say: ‘I am special. I am different. I should have my own arrangements, my own award and I do not want to have anything across the board.’ I think what is happening now is a managed, structured process that is delivering outcomes. The people best able to manage this are the Australian Industrial Relations Commission on the whole.

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

It is failing.

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

You say it is failing. It is not failing at all. It is going through the process. It is a complicated and difficult process.

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

Why did the minister write to the president on 29 May?

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

We are aware of that. I have already addressed that. I do not know why you laugh at that, Senator Fisher. It is a bit strange.

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

It is a hopeless explanation.

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

It is not a hopeless explanation. I am saying that when a genuine case has been made out the minister has acted. What the opposition wants to do, Senator Fielding, is sabotage this process with these sorts of amendments. What they want to do is invite everybody to make that argument and to make that case, and all that will do is add chaos. The provisions are there. When they need to be used, they can be used and they have been used. The people who do this are the industrial relations experts. The Industrial Relations Commission has evolved over 100 years and is managing this process. On the whole, it is the one best left to manage this process.

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

Senator Marshall has given us, yet again, a great insight into how Labor does business. If you can make a special case to the Minister for Employment and Workplace Relations, you will get preferred treatment. That is the way they do business. What we as a coalition are saying is that what we need is transparency and an opportunity for everybody to take their case to the independent body and for that case to be considered on its merits. What Senator Marshall basically said was, ‘If you can curry favour with the minister, if you can somehow make a special case then she might look after you.’ We know that is how Labor does business.

Indeed, it is no surprise that the minister at the table on this is Senator Arbib from the New South Wales right. That is New South Wales Labor from Sydney coming to Canberra and doing business in this way. That is the hallmark of Labor governments all around this country: curry special favour with the minister and you will get a special deal. That is what the Labor Party is all about, cutting the special deal and doing the deal.

What we are saying is—and I think Senator Fisher has put it exceptionally well—that we need a transparent process where you do not have to weave your way through the carpet loops by crawling into the minister’s office seeking special favours. You ought to be able to make an application, put your case and have it judged openly and transparently rather than simply by the minister’s goodwill. I think that is a very important differentiation between what Senator Marshall has put on behalf of the Australian Labor Party and what we are saying as a coalition.

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

I cannot let that go by. On the one hand we have got a Senator Abetz saying, ‘We should not be talking to people and consulting.’ On the other hand we have got Senator Fisher saying, ‘We should be doing it; we are not talking and we should be consulting.’ You cannot have it both ways in this. We have been 100 per cent clear. This is a major reform. This had been left in the too-hard basket by the opposition during their 12 years in government. When you were pursuing Work Choices, this is the one area where you decided it was too hard and too difficult—’Let’s leave it behind and not get into the detail.’

This is something that business actually want. You claim to be the champions of business. Go out and talk to business. They want this reform. They do not want thousands and thousands of antiquated awards. This is about reducing red tape. This is about reducing costs for business, making it easier in the industrial relations system. And there is a role to play for the AIRC here. This, Senator Fisher, is about judging each case on its merits. This is about flexibility in the legislation. I fully support the comments of Senator Marshall on this.

I will also just go to a couple of other points that have been raised by Senator Fisher, because there does need to be some clarity. Either there are some misunderstandings or Senator Fisher is ill informed. In relation to the AIRC matter re horticulture and wine growing, this matter is not finalised. The AIRC said in a statement on 22 May 2009:

While some urged us to include independent wine grape growing in the Horticulture Award 2010, or at least apply some of the provisions of that modern award to independent wine grape growing, the extent to which current horticulture awards and NAPSAs actually apply to independent wine grape growing was not readily apparent. We invite further submissions on this issue.

That matter has not been resolved. They are seeking further information and further submissions. It is quite clear, Senator Fisher. That is the statement from the AIRC.

Senator Fisher made some statements regarding the AIRC in relation to the restaurant and catering industry too. The AIRC are acting right now on this request. In a statement made in Melbourne on 5 June 2009, they said:

[3] In order to comply with this paragraph it will be necessary to identify precisely the coverage throughout Australia of the proposed restaurant and catering industry award and consider its terms, including those relating to hours of work, penalty rates and overtime. It will also be necessary, as a preliminary matter, to settle a procedure and a timetable for dealing with the proposed award and for any variation to the Hospitality Modern Award.

There it is—a statement from the AIRC.

Senator Fisher has left, but I will still raise this, and I may raise it again: there is consultation going on with the sectors. There has been consultation—there have been meetings—with the restaurant and catering sector. There have been meetings with the retail sector. There have been meetings with the horticulture sector, and last night I mentioned one of those meetings, which took place on 26 May. In relation to the wine grape growers, I am advised that correspondence has been received very, very recently. That matter will be pursued and examined and there will be discussions. But the correspondence was only received very recently. Senator Fisher has made a number of statements which I believe are ill informed.

Senator Fielding, in relation to some of your concerns I think Senator Marshall has told you that this is about providing flexibility. This is about streamlining the system. Business are calling for it. They have been asking for it for years and years and years. I will give you one quote which I think is very important. This is what the Australian Chamber of Commerce and Industry said in 2005:

Workplace relations policy is too important for horse and buggy era approaches to persist.

          …            …            …

… many businesses are subject to overlapping, multiple sets of regulation (both state and federal) within the one workplace. For example production staff may be under one federal award, transport staff under another federal award and clerical staff under a separate state award – all containing differing rights and obligations.

This creates a situation in which employers and employees face profound difficulties in identifying workplace rights and obligations.

This is a reform that is difficult. There is no doubt about it. But it is the right reform. It is the right reform for workers, to provide fairness, but at the same time it is the right reform for business, to provide simplicity and reduce red tape. It will be especially important for small business, and that is why we are opposing the amendment.

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

It seems that the Australian Labor Party can get away with simply renaming something and then can accuse the opposition of not having done anything about it in the past. It is a bit like AusLink 2. Allegedly we did nothing about infrastructure. ‘Forget AusLink 1 and AusLink 2; we’ll just rename it the Nation Building Program and, all of a sudden, we can accuse the coalition of never having had a nation-building plan.’ Well, we did not have a ‘nation-building plan’ because we actually called it AusLink 1 and AusLink 2.

It is the same with industrial relations. Sure, we did not have award modernisation. Senator Arbib is right. But anybody who has followed this debate knows that we used the term ‘award rationalisation’. That was part of the industrial relations discussion year after year with us. That is what our policy was. That is what we were pursuing. But Labor, instead of continuing to call it award rationalisation, change the name to ‘award modernisation’ and all of a sudden they can accuse the coalition of never having pursued award modernisation. That is right. It is because we had a different name for it: award rationalisation. This is the sort of spin—the 24-hour news cycle, the Hollowmen factor—that motivates this government, not only every day but every single hour and every single minute that they are in this place or around the country.

Senator Arbib gave us a quote from the ACCI, expressing concern about the horse and buggy era with awards. If that is the case, if business—and especially small business, allegedly—are clamouring for this, why are we being inundated with the sorts of complaints that we are by these very same business organisations, by the wine growers? I suppose they are not small businesses. I suppose the horticulture sector are not small businesses. I suppose the restaurant and catering sector—wait a minute, we have looked after them, haven’t we? There is a special little deal for them. But why not the others that fall into exactly the same category, the same circumstances that were outlined in Ms Gillard’s letter?

In writing to the President of the Australian Industrial Relations Commission, Ms Gillard, in the fourth paragraph of that letter, said: ‘Data from the Australian Bureau of Statistics show that cafes, restaurants and catering services are characterised by comparatively low profit margins and high labour costs as a proportion of total expenses.’ Guess what? The aged care sector has that. I do not think they even know what profit margins are these days. The horticulture sector is exactly the same. I suppose the one saving grace is that the restaurant and catering sector looks after the latte set, and that is why the Labor Party are willing to champion their cause. Of course Senator Arbib is laughing, but that is about the only rationale for it—that the Labor Party’s commitment to the latte set makes them indebted to the restaurants and caterers because they provide them with their caffeine fix every morning. I confess: I indulge as well.

As soon as you move out of the metropolitan areas with their cafes and restaurants and get into the horticultural sector—the stone fruit sector, the berry fruit sector, the wine growers—you will find they can be forgotten about. They are mainly in the rural and regional seats that, chances are, the coalition hold or that tend to vote in a particular direction. But the latte set will be looked after by Senator Arbib and his mates in the New South Wales Right.

Good luck to the restaurants and caterers. We say that what has been done for them should be done not by way of special deals and special pleading to the minister but through a transparent process that would be available to every sector on application, and not just because they have been able to curry favour with a minister. Once again, I think this highlights some of the fundamental differences in approach to government between Labor and the alternative government, the coalition. We look for transparency, we look for openness and we look for equal access for the various sectors of the economy; we are not into special deals.

Secondly—and I have said this a number of times throughout these debates on industrial relations—one of the key factors that we take into account in judging legislation and amendments is the impact on small business. There is no doubt that this amendment will be of great assistance to small business, and I would be interested to know if there were in fact a sector, be it aged care, against this amendment. The wine growers, the horticultural sector—the list goes on. I think Senator Arbib either knows in his heart of hearts that they want this amendment or—and this may also be the case—the government has not consulted with these people and that is why he is not necessarily aware of their concerns.

It was interesting to note that Senator Arbib told us certain things—if I got the note down right—‘will be examined’. They are in the future tense: ‘will be examined’. Why haven’t they been examined already and why should we be passing this legislation unamended on the promise that some time in the future Senator Arbib and his mates in government might examine it? We want the assurance now for small business, and that is why we as a coalition will be seeking to insist on this amendment. We have allowed a number of amendments to go through on the voices but this one is of such fundamental importance to the small business sector that we will be dividing.

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

The Greens will be opposing this amendment. This amendment, if it went through, would effectively undermine the whole of the award modernisation process and would mean that every time the minister asked the AIRC to take into account other factors or to review a decision, as they did, for example, with the Clerks—Private Sector Award, basically all awards would have to be reviewed. We do not think that is acceptable. At the time that this was first debated, in March last year when the award modernisation process was started, we did express our concern. We recognised that this was an extremely complicated process. We indicated then our concerns about potential ministerial intervention and interference. This amendment takes that to the extreme. It is not something that we think we can support.

We also note that this is all about employers; it is not about looking at workers losing key conditions as a result of award modernisation. We have always said we are keen to ensure that there is a safety net for wages and conditions for workers, so this is not an amendment we will be supporting. We think it goes far too far. Having said that, we do recognise that there are issues. That is why we asked the government to agree to a review of the award modernisation process within two years not four years. The government has agreed to that. The minister has taken action, for example, in respect of the Clerks—Private Sector Award which, as I mentioned yesterday, would have exempted large numbers of employees. We think that there are provisions there if necessary. We do not think that this amendment should be supported because it basically undermines the whole process. If that is what the opposition is about then that is what would be achieved by this amendment.

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

I indicate that I am not inclined to support the coalition’s amendment for a number of reasons. Firstly, under the current provisions that relate to the AIRC the commission must have regard to the state of the national economy and the likely effects on the national economy with specific reference to the likely effects on the level of employment and inflation, and, secondly, the amendment that has just been passed, which was about the likely effects on the relevant industry or industry sector of any modern award including on productivity, labour costs and regulatory burden on business, would cover the concerns of the coalition.

My concern with the coalition’s amendment is that it is so prescriptive that it takes away any degree of flexibility for the commission in order to do its work. There is a framework for the commission to take into account issues, such as productivity and labour costs, which I think are a key concern of the coalition and I understand that. Also I commend Senator Abetz for referring to the specific instances in the horticulture industry for the wine grape growers. I too have had representations, particularly from the Riverland horticulture industry. Firstly, can the minister indicate in respect of the horticulture industry, particularly in the Murray-Darling Basin where things are pretty tough through a combination of drought, climate change and overallocation, whether he is aware of those concerns? Secondly, what steps is it likely that the minister will take in relation to those concerns? Does the minister say, in relation to the current factors that the AIRC must consider, that those concerns would have to be considered, including the state of the Murray-Darling Basin, in the context of the horticulture industry?

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

In response to Senator Xenophon’s question I confirm that the minister’s office has met with representatives of the horticulture industry. The Deputy Prime Minister will be carefully examining their concerns.

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

What about the wine grape growers?

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

If she is satisfied that there has been a departure from the principles laid out by the government for award modernisation then she will act appropriately. We will also, Senator Fisher, engage with the wine growers, who have very recently written to the minister. At the same time, given the AIRC is yet to consider their issues and on 22 May asked for submissions from them, the government strongly encourages those employers to engage with that process. I think that answers both questions.

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

Can the minister indicate when the meeting with the horticulture industry took place? I understand it was recently. Specifically, on the issue I raised about the state of the Murray-Darling Basin and the difficulties that growers and producers are having up and down the basin, in some parts more so than in others, will that be a factor that the Deputy Prime Minister will consider in relation to the representations made and with respect to her decision-making process?

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

I think last night I made the point that there was a meeting with representatives from the horticulture sector. Obviously, it could not cover the whole sector. That was held on 26 May with the Deputy Prime Minister’s office. Further correspondence and submissions have been received, including in the last couple of days. The department is analysing that material to make considered recommendations. Yes, Senator, I will pass on your sentiments and thoughts in relation to the Murray-Darling. I am sure those matters will be considered when the horticulture examination takes place.

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

The specific question is: given the state of the Murray-Darling Basin, is that one of the factors that will be considered by the Deputy Prime Minister in relation to this whole issue of award modernisation. It is a yes or no matter.

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

Yes.

Question put:

That the amendment (Senator Fisher’s) be agreed to.

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

I confess I rise with some hesitation because I said I was giving the last amendment to Senator Fisher with the hope that we might actually win a vote in the Senate—and we have. So I would be delighted if Senator Fisher could provide ongoing assistance to me! I thank the Senate for the last vote. We are now at opposition amendment (6) dealing with the default superannuation request. On behalf of the opposition, I move opposition amendment (6) on sheet 5817:

(6)    Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 6—Superannuation

Fair Work Act 2009

20  At the end of paragraph 139(1)(i)

Add “but ensuring that employers can nominate any complying superannuation fund as the default fund”.

Workplace Relations Act 1996

21  At the end of paragraph 576J(1)(i)

Add “but ensuring that employers can nominate any complying superannuation fund as the default fund”.

In moving that amendment, we are in fact covering a discussion and debate that we had when the Fair Work Bill was considered by this place. It is the coalition’s very strong view that there needs to be some consideration of this yet again, in fairness to workers, employers and the superannuation industry.

This amendment will retain superannuation as a matter that can be included within a modern award but it will provide discretion for an employer to nominate an alternative complying superannuation fund as the default. This does not impinge upon existing freedom of choice obligations. The amendment changes both the provisions in the Workplace Relations Act 1996 and the Fair Work Act 2009.

The amendment will work in the following way. First of all, the employee of course should have a say. Then there would be, as Labor has it, the default system of having a particular fund. But we say that between those two positions there should be the opportunity for an employer to nominate an alternative default super fund—for example, if you want a green friendly, a religious friendly or whatever friendly super fund; or indeed if you want a state based super fund as an alternative to the existing fund or funds as nominated by the Australian Industrial Relations Commission in the award modernisation process. An employee could choose to use the employer’s nominated fund or of course any other fund using their choice of fund entitlement. It would be fair to say, and I am sure all senators have had representations from the superannuation industry outlining and confirming this in great detail, that there are concerns that there are now substantial monopolies being created in the superannuation sector under award modernisation.

For example, a monopoly has been awarded in relation to award covered employees in the following industries: textiles, clothing and footwear; hair and beauty—something that Senator Arbib and I of course are keenly interested in, and Senator Marshall, not to leave him out of the picture—general retail; fast food and higher education. Many of these industries are major employers of award covered employees. In other industries competition is restricted to a limited number of industry funds. Award modernisation will effectively lock all other superannuation funds out of a large segment of the market. There is no real rationale expressed by the Australian Industrial Relations Commission to indicate why it supports the particular fund that is nominated in a particular award. There is no robust mechanism where the Australian Industrial Relations Commission says, ‘We have checked out all the super funds and we believe this is the best one for the workers and the industry.’ It is just a deal done in relation to the award that then puts it in there and gets the tick from the Australian Industrial Relations Commission.

We believe the employee should have a say. In the event that the employee does not nominate then it is up to the employer, should they wish, to nominate a super fund. And in the event that the employer does not wish to nominate a super fund either then we say that, yes, it makes sense to have the default fund in the award. We have no difficulty with injecting this degree of competition—and what is more it will ensure that the award nomination funds remain competitive and responsive to their members if they know that individual employers and individual employees can nominate other superannuation funds. My time speaking here today is short so I will contain my remarks there in relation to this matter. But I do refer honourable senators to the more extensive debate that we had during the Fair Work Bill discussion. I commend the amendment to the Senate.

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

I have to apologise to the Senate for not being here for the last vote. That was due to inadvertence in my office—my own inadvertence, that is. I was on my way to the chamber when the vote was held. I seek leave of the Senate for that vote to be recommitted.

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

by leave—Madam Chair, the chickens have come home to roost for Senator Brown. We all recall when a coalition senator, for exactly the same reason as Senator Brown, inadvertently missed a vote in this place. And there was Senator Brown, high and mighty, condemning the coalition for being incompetent and unable to run themselves. ‘What a rabble the opposition was,’ he said. But of course when the self-righteous Leader of the Australian Greens does exactly the same thing it is covered with glory—it must be something good because it is Senator Bob Brown who has somehow inadvertently missed a vote.

I say to Senator Brown: read the Hansard. I am not addressing anybody personally; I am saying that Senator Brown should read the Hansard of the comments he made when a coalition senator missed a vote. He should read it and delete the word ‘coalition’ and instead insert the words ‘Australian Greens’. The hypocrisy will hit you in the face like nothing else. We said at the time that these things happen to senators on all sides and that for those who seek to make cheap political capital when there is such an occasion it will undoubtedly be revisited upon them.

Can I say to this chamber I am one of the fortunate ones, having been here even longer than Senator Brown and not having missed a division. That is more by good luck than good management, because inadvertence and other factors come into play from time to time. That is why a sensible—and I know that is a foreign word to the Australian Greens—approach to these matters and an acceptance of mistakes by senators all around the chamber is something that will occur in the day-to-day activities of the chamber as a whole and in the individual lives of senators in this place. But when you come into this place and seek to make cheap political capital and say how well organised the Australian Greens are, how good the Australian Greens are, what wonderful leadership the Australian Greens provide to the community and, ‘We do not miss votes’—

Christine Milne (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Jealousy is a curse, Senator Abetz.

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

Here we go. The Deputy Leader of the Australian Greens is saying, ‘Jealousy is a curse.’ I suppose I should be jealous for not having missed a division like the Leader of the Australian Greens. Really, this is the Australian Greens mentality writ large. If anybody else makes a mistake, it is to be condemned; if the Australian Greens do—the untouchable Australian Greens—it is to be seen as a virtue. When we point it out to them, it is only because we are jealous we did not make the same mistake. This is how small-minded the Australian Greens are and this is the sort of intellectual robustness that they bring, unfortunately, to serious policy debates in this chamber as well.

Can I say—and I said it at the time, and other coalition senators said it at the time—when you try to make cheap political capital out of somebody else’s misfortune, be careful the same misfortune does not befall you. Today that same misfortune has befallen Senator Brown, and I invite Senator Brown—and all those in the media, by the way, who put Senator Brown on the evening news saying what a rabble the coalition was—

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Abetz, you have leave to make a short statement. The question is that leave be granted to recommit—

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

I am sorry, I was not aware that there was a time limit, Madam Temporary Chair.

The Temporary Chairman:

Please go ahead, but I am just pointing out that this is not a debate. This is a statement by leave.

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

I sought leave to make a statement; leave was granted. I accept the chair’s intervention but I am not sure on what basis. If I may continue, what I was saying, Madam Temporary Chair, was this: if you seek to make cheap political capital out of another colleague’s misfortune—

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

Remember that, Senator Abetz.

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

I do not know who made that interjection, but can I say—and I said this before—that the same misfortune has not befallen me, not because I am inherently better. As I said before, it was more by good luck than good management. But what I am pointing out today is what we sought to point out last time when Senator Brown made cheap political capital against the coalition: be careful it does not befall you, because you will look exceedingly foolish. Today that look of exceeding foolishness has fallen upon Senator Brown by his own misfortune, by his own inadvertence.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

He was probably out counting his money.

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

Senator Macdonald makes a cheap interjection, or not such a cheap interjection—

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

A very expensive interjection!

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

a very expensive interjection—saying that Senator Brown was, chances are, counting out his $739,000, plus or minus what he has not properly declared.

The Temporary Chairman:

Senator Abetz, I ask you not to respond to interjections.

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

But I will not go down that track. I would simply say that, Senator Brown, we understand your misfortune, your inadvertence. We will not stand in the way of the recommittal of the vote, but next time this sort of misfortune befalls somebody in the coalition, the Labor Party or the crossbenches keep in mind your own misfortune and you will take a much more mature and considered approach than you did last time.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

by leave—I think it is really important that Senator Brown realise, if he is going to recommit this vote, what it is about. What Senator Fisher moved is something terribly important to horticultural producers, especially in the requirements they need to keep them viable. In our area, in areas such as St George, this is going to have overwhelming ramifications. Those producers have been watching this vote and they believed that at that point in time they had actually got somewhere—and now, because Senator Brown missed a division, we have to go through the process of recommitting it. This has huge ramifications for people in that industry. I ask Senator Brown, if he wants the vote recommitted, to strongly consider his position, the ramifications for those people in the horticultural industry and the effect it will have if we go forward and change it.

I would also like to bring this to Senator Brown’s attention. Senator Brown came in here yesterday with a motion that he had never actually lobbied anybody over. It regarded Caroona and the coalmining in that area—an extremely sensitive issue. We were trying to get the numbers and trying to actually get somewhere on this issue, but in a point of theatrics he came in here and moved a wedge motion to try to divide the place, to blow the place to pieces, to lose support all around the shop. We were really looking forward to being engaged in this process and getting somewhere, but no, we did not do that. Yesterday it was the wedge to blow support up; today it is forgetting to turn up to the chamber to vote. This is starting to show a pattern and on both issues it is extremely unsavoury.

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

Order! Senator Joyce, you are starting to debate the amendment that was put before the chair. There is an appropriate time to do that. What we have in front of us is the fact that Senator Brown sought leave to have the amendment recommitted. If you wish to speak on that then you can, but you cannot debate the amendment. That was already dealt with on the floor of the chamber.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

I would like to speak on the process of recommittal.

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

You did get leave to make a short statement.

Barnaby Joyce (Queensland, National Party) Share this | Link to this | Hansard source

In both instances this recommittal is an extremely important thing. I am absolutely 100 per cent behind what Senator Mary Jo Fisher put up in that amendment. It is absolutely vital that people in the horticulture industry understand that there was a process here a short while ago where we had actually got somewhere and delivered something back to them that is vitally important for employment in that area. I ask Senator Brown to clearly understand the ramifications of what happens if he now changes that vote and changes that position. I think it should be clearly spelt out to all the people in those horticulture industries that what Senator Brown is about to do is to make so many of those industries unviable because of the overhead that will come on top of where they are currently. Senator Brown, you should really think about that before you recommit your vote.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

by leave—I want to refer to Hansard and quote what Senator Brown said in the Senate when Senator Scullion missed a vote earlier in the year:

… this does show the opposition is in some disarray. … My only advice to the opposition is you need to get yourself in order—

Those were his exact words in Hansard. I am not going to harp on this; I am just going to say that I said that night to now Minister Arbib, ‘Those who live in glass houses should never throw stones.’ It was only 10 minutes or so later that we had another division in which one of the Labor senators was not present—I think it was Senator Bishop. The point I make is that when we make a mistake Senator Brown gets up and gives us one large spray. I will repeat what I have said: those who live in glass houses should never throw stones.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

by leave—Of course the opposition will be following the conventions and allowing this amendment to be recommitted. We are honourable when it comes to that. But it does highlight the hypocrisy of the Greens political movement in the way that Senator Brown, when any of us—not the Labor Party—happen to miss a vote of any sort, is most scathing—

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

Sanctimonious.

Ian Macdonald (Queensland, Liberal Party, Shadow Parliamentary Secretary for Northern Australia) Share this | Link to this | Hansard source

Thank you, Senator Fisher. He is sanctimonious in his approach. It is simply the same as the Greens political party generally. You will recall in the Queensland election campaign that they went out telling everyone they were going to save the Traveston Crossing dam, then they gave preferences to their mates in the Labor Party, who had committed to building the Traveston Crossing dam. It shows the hypocrisy of the Greens political movement.

Senator Abetz’s magnificent speech last night again highlights the hypocrisy of the Greens political movement. I am distressed about it in my state of Queensland and it is relevant to what is happening now in that the Greens say something to get a vote in the Queensland state election, promise they will hold up—they will ensure the Traveston Crossing dam does not go ahead—and then give preferences to the only political party committed to building that dam. As a result of Greens preferences and Greens support, the Labor Party was returned in Queensland and the Traveston Crossing dam will be built. Who do we thank for that? Senator Brown, in another one of his sanctimonious hypocrisies in the way he approaches issues in this chamber and policy generally.

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

by leave—We all make mistakes and recommitting the vote does make sense. Maybe Senator Brown would like to use my red scooter to get here on time, but I will not go there. This does smack of complete hypocrisy by the Greens. I am sick and tired of hearing them say some things that account for one side and when someone else makes a mistake they ping them something shocking. We are all going to make mistakes, and fair is fair, we will recommit the vote and that is okay. I must say even the Hon. Don Chipp in his book warned Australia about the Greens ever having the balance of power. I have got to say the hypocrisy of this issue just shows the hypocrisy of everything that happens with the Greens.

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

I have two things to say. Firstly, I support the recommittal because ultimately we ought to reflect the true will of the Senate; and, secondly, there by the grace of God go I.

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

We have a request for leave for the amendment moved by Senator Fisher to be recommitted. Is leave granted?

Leave granted.

The question is that amendment (5) moved by Senator Fisher be agreed to.

Question put:

That the amendment (Senator Fisher’s) be agreed to.

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

Before Senator Brown’s mea culpa and explanation of his embarrassment, I had moved, on behalf of the opposition, the reasons and rationale for opposition amendment (6) on sheet 5817. I therefore do not seek to add any further comments at this stage.

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

This amendment concerns the default superannuation fund, where the Industrial Relations Commission makes a decision on who is going to have the default super fund for a particular award. The concern I have—and this debate came up last time—is about there being a fair and open process for how the Industrial Relations Commission chooses such a default fund. This is a very important issue, because when people join a new company maybe they should pay a lot more attention to their superannuation decision, but they do not, and most of the time they are left in the default fund. If we are going to be left with a default fund that is set up through awards, we certainly have to ask the question: how is that decision being made? How does the Industrial Relations Commission make a decision about which is going to be the default fund for that award? By what process is the decision made? Is there public scrutiny of it? Guess what: there is not.

In the last debate we had, I raised the issue about having a process where the Industrial Relations Commission has an open tender to allow everybody to have a fair go at competing. That is certainly good for making sure that we have market forces at work—which the Rudd government likes to use from time to time—rather than the Industrial Relations Commission using a process that is hidden, secret and not open and that certainly means that people are just a little more concerned about what is actually going on. It was quite a simple thing that I put forward last time. It was not supported in the chamber, and that is the chamber’s decision, but I am not going to give up on this issue. The Industrial Relations Commission should hold an open, public tender for the default super fund for each award. It is a big issue.

What I have got back is some review of the process again. I am looking for an absolute commitment from the Rudd government. I do not want some wishy-washy review; I want a guarantee that the Rudd government will ensure that the Industrial Relations Commission holds public tenders on a frequent basis—say, every three years—for the default fund for each award. It is a simple issue; it is not a complex one. It is a simple proposition. It has merit. I have spoken to a lot of people in the industry—some may not like it, but it has a lot of merit—about opening it up to industry funds, corporate funds and hybrids. It is competitive forces tendering, open tendering with open criteria that allow us to make sure that each award has the best possible default fund. It is an open tendering process that is held every three years so that, if things change over those three years, it can happen; you can allow the competitive forces to reopen it again.

It is a simple issue, and I want that commitment from the government. I have been after that commitment since the last time we spoke. I got some correspondence about another review. Great. That may get by for the public, but it does not get by me. I want a commitment that the Australian Industrial Relations Commission will hold a public tendering process for the default super fund for each award rather than just nominating on the basis of who knows what criteria. If this commitment is not given, I am inclined to support the opposition in leaving it open to the employers to make that decision.

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

The Greens are taking the same position on this amendment as we took when a similar amendment was put up during the substantive debate on the bill. We will be opposing it. We do not support the amendment, just as we did not support it during the last debate.

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

The government does not support the opposition’s amendment. I do not think that is any surprise. The AIRC has provided for default funds in modern awards. These are funds which an employer can pay into on behalf of the employee who has failed to exercise their right to nominate a fund of their own choosing. The commission sought the views of stakeholders on appropriate funds and has decided to allow any fund to which an employer was contributing at 12 September 2008 to be listed as a default fund.

I make the point that all Australian employees will continue to be entitled to choose their own superannuation fund when modern awards commence on 1 January 2010. Providing safety net protection for Australians who do not exercise superannuation choice of fund is important. Employers and employees are free to agree upon a different default fund to those set out in the modern award in any enterprise agreement that they make.

Senator Fielding, in relation to the question that you asked me, I know you have had discussions with Senator Sherry—not to your agreement, obviously—but certainly you can continue those discussions with Senator Sherry and also with the new minister, Minister Bowen.

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

There was a letter from the Deputy Prime Minister to the Australian Industrial Relations Commission. It was referred to before in this debate. It was quite easy for the Deputy Prime Minister to pick up a pen and write a letter and say, quite rightly, that restaurants and caterers deserve special treatment. The Deputy Prime Minister or the Prime Minister could write a similar letter instructing the Industrial Relations Commission to have an open and fair process in deciding which is the default superannuation fund for each award. It could do that—it could absolutely do that. It is quite clear that they are quite happy to write to the Industrial Relations Commission and give it directions and instructions, but, when it comes to default superannuation, for some reason they do not want to open it up.

The government is happy to do a review. Maybe at the end of that review we will actually get to a common-sense process that does open up the decision-making process of the Industrial Relations Commission to work out which is the default fund. This involves very big dollars and very big business, and it affects most Australians when they change companies. Unfortunately, a lot of Australians do not pay close enough attention to their default superannuation fund when they start new employment because they have other things on their minds. It is a good process—it is good governance—to open this up to public scrutiny.

It is a simple thing to write a letter, as the Deputy Prime Minister has previously shown on a different issue, to instruct the Industrial Relations Commission. Answer me this question: why won’t you instruct the Industrial Relations Commission to hold a public tender on a frequent basis, a reasonable basis? If you want two years or you want four, I am happy to have that debate, but they should have an open, public, tendering process for the default super fund. I worked in this industry for a while; I know the issue. It is common sense. Can you answer the question: why won’t the Rudd government instruct the Industrial Relations Commission to have an open and fair process of selecting a default superannuation fund?

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

Senator, I am happy to help arrange a meeting for you with the new Minister for Financial Services, Superannuation and Corporate Law, the member for Prospect, and also for the Deputy Prime Minister to be there. Quite clearly, what you are discussing has nothing to do with the amendment. As you know, it is a very complex issue, but the government is happy to discuss this further with you.

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

Madam Temporary Chairman, I rise on a point of order. It has to do with this amendment. It is talking about the default superannuation—

Annette Hurley (SA, Australian Labor Party) Share this | Link to this | Hansard source

That is not a point of order.

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

As I was saying, Senator, this is an extremely complex issue. It is a very important issue, and I understand your passion for it. Superannuation is something that the Labor Party has always been passionate about, given that it was former Prime Minister Keating who introduced that legislation. So we, too, are passionate about it, and we are happy to have discussions with you. As I have said, I have offered to arrange a meeting with the Deputy Prime Minister and the new Minister for Financial Services, Superannuation and Corporate Law, the member for Prospect.

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

Maybe the minister would like to put forward any rationale for the reasons for or against the Industrial Relations Commission having a public tendering system, other than the other process of then putting it back to the employer to choose who the default fund may be for their staff. Can you put forward a reason why you would not want the Industrial Relations Commission to have an open, public tendering process for deciding who is a default fund for each award?

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

As I said, these are very detailed and complex issues. I have given you the information. I am happy to arrange a meeting for you, and you can put those questions directly to the Deputy Prime Minister, which I think is the most appropriate way to handle that. This matter will not be resolved today in the chamber and it certainly will not be resolved by the opposition’s amendment. But, again, the government is happy to discuss it with you, and I can arrange a meeting forthwith.

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

Is it not amazing that here we are discussing this legislation—one minute to midnight, so to speak, in relation to this amendment—and the government finally offers a meeting to Senator Fielding to discuss this issue? This was in fact canvassed by Senator Fielding in March this year—some three months ago—during the Fair Work Bill discussions. These issues were canvassed then. We as a coalition moved amendments then. Three months have elapsed, with no need to consider or treat this issue with the seriousness that now, all of a sudden, Senator Arbib tells us it deserves—only because they are desperate for a Senate vote today. What happened in the three months in between? Senator Fielding’s concerns were completely ignored and completely forgotten, and the issues that were raised three months ago were treated with contempt. And now, desperate for a vote, the government says, ‘We’ll finally open the door of Ms Gillard.’ It simply is not good enough.

A very, very reasonable question has been posed by Senator Fielding: why shouldn’t the AIRC go through such a process? Indeed, why won’t the government actually support our amendment which would allow the employer to have a bit of an individual say in superannuation funds as well? I think I know the reason in relation to the AIRC possibly not putting up these super funds for, if you like, public tender in each award. I think the AIRC would say, ‘We are not qualified to make those judgments. Our expertise is in matters of industrial relations, not in matters of superannuation investment funds and dividends, who gets what, what the fees are, what the management fees are et cetera.’ I think that is why the AIRC may well be reluctant. And, potentially, I can understand that. But I would have thought—and I do not know why I am doing the minister’s work for him here—that the AIRC could potentially, with the support of the government, outsource the issue of analysing superannuation fund tenders for the default award provisions. And, as a result, this proposal by Senator Fielding clearly could be implemented if Labor wanted to.

But I come back to the proposition that I have put here now on a number of occasions. It is amazing, isn’t it? If it is a deal with the restaurant and caterers, you do a special deal with Labor and you get a special outcome. Labor do not want a fair, open and transparent system in relation to the issues that I raised before in another discrete debate in this raft of amendments about allowing the Australian Industrial Relations Commission to determine the factors that might apply to a particular industry for the no-detriment rule or for award modernisation. It is the same here: Labor do not want an open, transparent system for the default superannuation fund. Why? It is so the big unions can do big deals with big superannuation funds—rub shoulders; do the deals. That is what Sussex Street, New South Wales Labor, represented here by Senator Arbib, are all about. This is, unfortunately, Sydney, New South Wales Labor coming to Canberra to wreak the same sort of havoc on the nation as they have wreaked on New South Wales.

If the government were genuinely concerned about the best superannuation outcome for workers rather than doing the deals and the handshakes and then counting your fingers afterwards, and if Labor were genuinely concerned about the workers, why wouldn’t they allow the opposition amendment? I say this to Senator Fielding: there is nothing inconsistent between our amendment and what Senator Fielding is suggesting, and that is allowing the employer to choose a superannuation fund in the event the employee has not chosen one; and, if neither the employee nor the employer has chosen, you have a default fund and you go through the appropriate tender process. It just seems to me that, with the rise of companies that are based on all sorts of—let us use a neutral term—‘ethical’ grounds, be it environmental concerns or religious concerns et cetera, the question is: why wouldn’t you give those companies the right to invest their superannuation dollars in superannuation companies that have a similar ethic to that business? Why would you deny them that right in a country such as Australia, unless you were into the big deals—the big unions doing big deals with big superannuation companies? That is why the Labor Party are so determined not to allow choice in this vital area. Senator Fielding, I agree with you. I think that your idea has a lot to commend it. I simply say that the offer to discuss it should be of no comfort to you, because by the time you get to discuss it with Ms Gillard, if you ever do have a discussion with Ms Gillard about this—and I hope you never had that kiss, by the way—it will be after we have voted on this bill and then it will all be too late. That is why, the government having had more than three months to allow you the opportunity to discuss it, the promise from the table this morning by Senator Arbib is a very hollow one. I commend the opposition amendment to the Senate.

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

It has never been a problem of getting access to ministers, or even the Prime Minister. The issue is trying to get a common-sense result. I think that is the key, so that is the real issue here. I am genuine on this issue. I know that both sides are coming at this from a different angle. Maybe one comes from the industry side, industry funds, and one comes from the corporates. What I am trying to do is to open it up to get the best possible deal for the workers of Australia by making sure there is a competitive process, an open process and a fair process that allows a default fund that, when it is selected by the Industrial Relations Commission, is public, open and transparent so that we can be sure we are getting the best fund for that award—rather than it being broken up on history only. That is all. That is what the issue is about: making sure that we get the best possible default superannuation fund for that particular award.

There has been a lack of movement. Yes, I have had letters; yes, I have had correspondence; yes, we have had that. The issue is not about the ongoing interactions but about getting the result that I think is important for Australia and all workers when it comes to a default fund. That is the issue. I am not coming at it from being favourable to industry funds or corporates or even hybrids. I am about getting the best default fund for that particular award. And the best way of doing that is through a competitive, open tendering process. Given that the opposition’s amendment adds the words ‘but ensuring that employers can nominate any complying superannuation fund as the default fund’, I have not got anything else, and that seems to be another way of getting around it.

Question put:

That the amendment (SenatorAbetz’s) be agreed to.

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

I move opposition amendment (7):

(7)    Schedule 5, page 66 (after line 11), at the end of the Schedule, add:

Part 7—State-based differences

Workplace Relations Act 1996

22  Section 576T

Repeal the section, substitute:

576T  Terms that contain State-based differences

        (1)    For a period of 5 years starting on the day on which a modern award commences, the award is to reflect the State and Territory differences in previously existing awards.

        (2)    If, at the end of the period of 5 years starting on the day on which a modern award commences, the modern award includes terms and conditions of employment that:

             (a)    are determined by reference to State or Territory boundaries; or

             (b)    do not have effect in each State and Territory;

those terms and conditions cease to have effect at the end of that period.

        (3)    The Commission may reduce the 5 year period referred to in subsection (1) only if it is satisfied that it is appropriate to do so, having regard to:

             (a)    the views of the sector which the modern award is intended to cover; and

             (b)    the impact on employment within the sector which the modern award is intended to cover.

This amendment repeals the existing provisions and requires that modern awards are required to retain state based differences for a period of five years from when the modern award takes effect. This makes the five-year transition period the default position to be adopted by the Australian Industrial Relations Commission when making modern wards while affording it discretion to work to a lesser period where appropriate and having regard to the views of the affected parties and jobs within the relevant sector.

We believe that the amendment will work in the following way: the AIRC will be required when making a modern award to hear the views of the sector about the timing of phasing out state based differences and, in addition, about the impact on employment, which in our view is a very important consideration. After taking these matters into account, the commission may phase out state based differences over any period it sees fit with the default period being a maximum of five years. There may be a lesser period stipulated if the impact on employment is negligible and the parties are happy to phase out any differences in a lesser period. For example, the retail sector may say: ‘We will have an increase in overtime penalties on Sundays by 25 per cent. At the moment, given the current economic situation, that would cause us to lose staff or reduce trading times. Let’s transition in the penalty rate equally at an additional five per cent over five years.’ The retail sector may also say. ‘Let’s transition it at zero per cent in year 1, two per cent in year 2, three per cent in year 3, 10 per cent in year 4 and 10 per cent in year 5.’

Other sectors, such as mining, for example, already have a federal award, and the impact of award modernisation may be negligible. The sector may agree that the impact on employment is also minimal and that the award should come into total effect straightaway.

The ability to phase out the state based differences, or transitioning, is referred to at item 12 of the latest award modernisation request. The AIRC has set aside specific time to hear from sectors about the timing of transition. Therefore it just seems to the coalition to make sense to provide that flexibility to ensure that we do not have a further attack on the cost of employment in this country.

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

The government is not supporting this amendment. This amendment would entrench state based differences in awards for five years. All such differences would cease to operate after five years. This ‘big bang’ approach is a recipe for chaos. It would deprive employers and employees of a sensible and smooth transition to the new system and would prolong current inconsistencies in terms and conditions. By contrast, the government has created an orderly process. This process is already underway and the commission is well advanced in consulting with stakeholders in developing the provisions.

The AIRC is able to determine award-specific transitional arrangements after consideration of submissions from interested parties. In doing so, it is open to the commission to use the full five-year period to phase in these arrangements where appropriate. Importantly, this recognises that the representatives of employers and employees are best placed to develop transitional arrangements that take account of any particular characteristics of their industry or occupation, including the staging of any phase-in arrangements and the period over which phasing in occurs.

This amendment would pull the rug out from under the AIRC and send the parties back to the drawing board, and for no real purpose. The commission is already acutely aware of the need to consider a smooth and orderly transition. It is acutely aware of the need to ensure a gradual adjustment to any cost increase. Passing this amendment would not make any difference to this but would create massive inconvenience for all concerned. For these reasons, again, the government opposes the amendment.

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

With great respect: I do not know if the minister was reading from briefing notes, but I would invite him to listen to what was actually said and have a look at exactly what the amendment is. To suggest that this would entrench state awards for five years is completely fallacious. It is wrong. I said in my introductory comments in support of the amendment that it would be up to the AIRC to phase out—and I even gave the example of the mining sector, which might not even want any transition period—but that there should be flexibility. So to say that this would be entrenching it for five years is patently wrong. I do not know where the minister got that idea from.

Further, to suggest that we would be pulling the rug out from under the AIRC—I think that was the term used by the minister—is also patently wrong. I said in my comments—and the amendment will bear it out—that the AIRC may phase out state based differences over any period it sees fit, with the default period being five years. In other words, the AIRC would be empowered. That is hardly pulling the rug out from underneath it. So the two reasons the minister tried to give in opposing this amendment have fallen flat. Undoubtedly he will come up with another reason, because the idea of flexibility is something that Labor clearly have an ideological difficulty with.

Given the propensity of the minister to quote, I quote the Australian Chamber of Commerce and Industry, who said on 11 June:

The Government’s award modernisation process should not come at the expense of increasing employers’ costs or introducing new or additional inflexibilities. If it does, the Government should have no hesitation in directing the tribunal to have another go.

It would be a perverse outcome that employers, when faced with the alternatives, may prefer the former array of “outdated” awards.

The government’s ham-fisted approach in relation to this transition bill is unfortunately going very much to a scenario where employers will say that the outdated or ‘horse and buggy’ era of awards that the minister referred to may well be preferred to that which the Labor Party, with their usual spin, are now describing as award modernisation.

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

I just respond by saying to Senator Abetz that all the necessary flexibility is already in the system. The AIRC has taken all its submissions on the basis of the current laws, passed in March 2008—passed, I might say, by the opposition too. If this amendment were passed, the AIRC would presumably have to tear up the many submissions already received and rehear the issues, for no practical effect. The AIRC already has the flexibility it needs to phase in over the five years. Again, that is why we are opposing the amendment.

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

The argument before was: ‘It’s going to entrench state awards for five years; that’s why we’re against it.’ Now, having had that argument exposed as flawed, the minister has changed the argument to say: ‘There’s no need for this amendment because the flexibility that we are seeking is already in the legislation.’ It is that sort of mixed message that is confusing employers and causing great uncertainty within the economy. It is little wonder that unemployment is heading north at a very, very fast rate. Time is short. I commend the opposition amendment to the chamber and indicate that we will be seeking to divide on this one.

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

Can I say to Senator Abetz that I do not want to extend this debate any longer, but you obviously had not been listening to my first remarks where I did talk about the flexibility that is already in place. That is just one of the arguments, not the whole argument but one of the arguments that I spoke about. But I will resist any further comments as well.

Question put:

That the amendment (Senator Abetz’s) be agreed to.

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

by leave—I move opposition amendments (8) to (10):

(8)    Schedule 22, page 257 (after line 15), at the end of section 137A, add:

Application of right of entry penalties to employers

        (8)    An employer who refuses entry to an employee organisation on the grounds of seeking an order or interim order under this section, and acts expeditiously and in good faith in seeking that order, is not subject to right of entry penalties under Part 3-4 of this Act.

(9)    Schedule 22, page 257 (after line 32), after paragraph 137B(1)(e), insert:

           (ea)    the views of the employer; and

(10)  Schedule 22, page 257 (after line 33), after subsection137B(1), insert:

     (1A)    For the purposes of paragraph (1)(d), any agreement or understanding includes prior judicial and administrative decisions under previous legislation or involving related or predecessor employee organisations.

The purpose of these amendments it to provide for the application of right of entry penalties to be suspended where an employer has acted expeditiously and in good faith in seeking a representation order. Allow me to seek to explain. Where an employer has a site and there is a dispute about union representation, the employer can seek the assistance of Fair Work Australia to resolve the dispute. While this is occurring, our amendment would protect the employer from being penalised for stopping entry to union officials as that employer would not know which union is entitled to represent employees until after the union representation order has been made by Fair Work Australia. A key requirement is that the employer would have had to act quickly and in good faith to seek an order and cannot use it as a way of shutting unions out in nefarious circumstances.

Our amendments would require Fair Work Australia to have regard to the views of the employer when making an order. The current provision focuses on the nuances of union rules and may result in a lengthy proceeding about historical coverage and such matters. An employer should be entitled to make its views known to Fair Work Australia and Fair Work Australia should be required to take those views into account just as it is already required to take into account the views of employees.

Our amendments would also require Fair Work Australia to have regard to previous demarcation decisions and outcomes. There is a large history of such cases and there is a danger that Fair Work Australia may have to go over old ground once again, which is unnecessary and inefficient. Our amendments merely allow Fair Work Australia to take account of those previous decisions and outcomes when making any new orders. This will allow union representation orders to be obtained much more quickly and effectively while minimising any operational disruption, job delays, job losses or productivity. In short, the reason we are moving these amendments is once again to assist small business in this vexed area of union right of entry and representations. There are clearly circumstances that can be foreseeable where the employer can act in good faith and simply not know what is required and as a result if they act expeditiously and go to Fair Work Australia, the issue can be resolved. In those circumstances a small businesses should not have the threat of penalties being imposed in that very small, very discrete area of circumstance that I have just detailed. I commend opposition amendments (8) to (10).

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

The Greens do not support the provision in the bill for new representation orders and consequently it will come as no surprise that we do not support the opposition amendments. As I said in my speech on the second reading, the purported reasoning for these new orders is to deal with the new rules for right of entry and the fears expressed by business that demarcation disputes between unions would increase as a result. However, we note that the new orders are not limited to right of entry disputes; indeed, there may not even need to be any actual dispute at all. We note the amendments the government moved in the House that clarify the dispute need only be threatened, pending or probable and, like the senators who contributed to the majority report of the committee inquiry, we do not believe additional representation orders are necessary. We believe they will have the potential to breach the rights of workers to freedom of association and therefore believe they do not have a place in our industrial relations system. So, as we do not support the provisions in the bill, we will not support these amendments.

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

I indicated in my second reading contribution that the coalition’s proposed changes to 137A appeared to be in response to a request for greater clarity from persons submitting to the committee inquiry. Could the government address those concerns? I did indicate the rationale in relation to the changes to 137B, especially as to the views of an employer in relation to the making of an order. It does not seem so clear to me, but perhaps Senator Abetz could further clarify that, I thought it was actually covered broadly in the legislation in any event. I do have a concern in relation to rights of entry, given the debate we had on the previous bill. I think it is important that that not be held up particularly in relation to the issue of outworkers, something I have been quite concerned about. If I could get some further clarification from both the government and the opposition, I would appreciate that.

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

Senator Xenophon, the first question you raised was actually raised in the House, and the government have moved an amendment in the House which will have that effect. So my understanding is that that matter has been resolved.

We are opposing opposition amendment (8). This amendment allows employers to refuse right of entry when a business is subject to a demarcation dispute, which would deprive employees of access to their union at the workplace merely because there is an application for a representation order. This amendment is draconian and unnecessary. It would create a perverse incentive to make such applications and delay the resolution of those applications in order to avoid a union seeking access to its members. This could, for example, be misused by an employer in a bargaining situation to prevent a union representing people. But it is important to note that where a demarcation issue is causing difficulties there is already the capacity to seek an interim representation order. For these reasons, the amendment is opposed.

Amendment (9) requires employers’ views to be considered when making a representation order. This is unnecessary as the consequences for the employer of not making an order is already a factor that Fair Work Australia must consider. An amendment requiring greater regard for existing representation orders is also unnecessary as the bill already prevents Fair Work Australia from making a new order that would be inconsistent with an existing representation order.

The government oppose amendment (10). We believe this amendment is unnecessary. The bill already requires Fair Work Australia to have regard to any development agreement or understanding of which Fair Work Australia becomes aware that deals with the right of an organisation of employees to represent the industrial interests of a particular class of employees. This is dealt with in schedule 22, part 3, 137B of this bill. As well, the government has moved amendment (15), which allows for the recognition of a demarcation order made in a state industrial relations system. These provisions make the amendment unnecessary and confusing and it is therefore opposed.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

Senator Arbib, you said you were opposing opposition amendments (8) and (10). I take it you are also opposed to (9); is that correct?

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

Yes.

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

I will respond to Senator Xenophon. In relation to our amendment seeking to include the views of the employer, I would have thought that it would not be a matter of concern for anybody in this chamber. Employers are actually the people doing the employing, and I would have thought it would make good sense for the employers to have a say. If I understood the minister correctly, he said that this would be allowed anyway. If that is what the minister is saying, the worst case that can be made against this particular amendment is that we will be protecting employers with a belt and braces and there is nothing to undermine the regime. We are not so sure that the employers have got the belt on the trousers courtesy of the government legislation and that is why we are seeking to affix the braces. We believe there has in fact been no cogent argument other than it might just be otiose or duplicating. If that is the only danger, for the sake of looking after the employers, we see no difficulty with that.

In relation to Senator Xenophon’s concerns about outworkers, firstly, as I understand the regime, there is a specific, separate regime in relation to right of entry dealing with outworkers. Secondly, as I understand the industry, there is no real difficulty in determining which union represents those workers. They are very clearly looked after by one particular union. Thirdly, I would say to Senator Xenophon that our amendments will only apply—and I stress this—when there is an application already before Fair Work Australia to determine the rights of representation. When a proactive step has been taken and an application is already before Fair Work Australia for their consideration but for which there has not yet been a determination, to visit a penalty upon an employer who is confused but has acted in good faith and is saying, ‘I’m waiting on Fair Work Australia to make a determination, but I honestly do not believe this union to be covering the workers,’ I would have thought that an employer in those circumstances should avoid having a penalty applied to them.

That is the very discrete area that we are looking at in relation to our amendments. I commend them to the Senate. If Senator Xenophon has any other questions, I would say to him: given the hour, only ask them if there is a real chance of me being able to convince you to vote for the amendments.

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

I have nothing further to ask Senator Abetz—

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

I get the drift!

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

but I do have a question for the minister. I do not support the amendments but I understand the concern of the opposition on the views of the employer. The government has said that that has already been squared off in other parts of the legislation. Can the minister give an unambiguous undertaking that in the review of the act that will occur in two years time this specific issue on how the views of employers are taken into account with respect to demarcation disputes will be specifically looked at and that it will be something that will be the subject of not only review but reporting, taking into account its operation with respect to this particular issue?

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

We commit to examining those provisions. If there is ever any evidence that an employer’s views are not being taken into consideration then of course we will certainly look at that.

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

The minister has just countenanced the very real possibility that an employer’s views might not be taken into account. That will be reviewed in two years time and in the event that that is proven to be the case they will then change the legislation. That is exactly the point I was seeking to make, Senator Xenophon, and that is why I would commend to you having our braces on this piece of legislation—because even the government doubts the efficacy of the belt that they say they are providing for these trousers for the employers. We are saying that our braces will actually work. And if after two years when the legislation is reviewed it is shown that the braces are no longer needed then that is fine—repeal our amendment then. But in the meantime the concession, I think unwittingly made by the minister, clearly shows the need for this amendment.

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

I am more of a belt than a braces man, and I think that the belt here ought to work. I did not quite interpret it in that way, to address the point made by Senator Abetz. As I understand it there will be a general review, and this issue of how it works in the context of employers’ views being taken into account would be one of the matters that would be looked at. If there are ways to improve the system and if there are indeed anomalies, they could be dealt with. But I am satisfied that what is proposed will provide sufficient safeguards and that to support this amendment at this stage in the current context could lead to some ambiguity, from the discussions I have had with the government in relation to this, with some unintended consequences. I am assured by the minister’s assurances and I will stick with the belt not the braces this time.

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

I wonder if the minister would be so kind as to share with the whole Senate what the ambiguity and unintended consequences might be of this particular amendment. It just seems to me that when a government is flummoxed, does not have an argument and cannot put forward something cogent then resort is had to ‘ambiguity and unintended consequences’ as the catch-all argument as to why you should reject an amendment when there is no other argument on offer. So I would be interested to hear what the minister has to offer in that regard.

Russell Trood (Queensland, Liberal Party) Share this | Link to this | Hansard source

We will hear from you when you are ready, Minister. The minister has the call. But perhaps, in light of his indisposition, I might call Senator Abetz.

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

The minister has needed all this time to find out what the ambiguity and uncertainties might be. It is a pity the Hansard does not record the time taken through these long silences to indicate the difficulty the minister has with this particular matter.

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

I am just trying to get you a detailed answer, Senator Abetz. I might just take another second and then come back to you.

Honourable Senators:

Honourable senators interjecting—

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

We believe that this would create an imbalance in terms of ‘what about the employees views and how would they be taken into account?’. It also duplicates existing obligation. Again, the inconsistency there is in relation to how employees are taken into account. That is why we are opposing it and that is the answer to your question.

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

I daresay that out there in radio land a lot of people are chuckling at the moment in relation to that response. The assertion was that there was ambiguity and uncertainty with the opposition amendments. We had this embarrassingly long, deathly silence and then finally the minister comes up with, and is armed with, this absolutely explosive response: it will create imbalance. That is just another word. Undoubtedly someone looked up a thesaurus or something and said, ‘What’s another word for ambiguity or uncertainty?’ And then they said, ‘Let’s try the word imbalance this time.’

Mitch Fifield (Victoria, Liberal Party, Shadow Parliamentary Secretary for Disabilities, Carers and the Voluntary Sector) Share this | Link to this | Hansard source

Next it will be, ‘It’s the vibe’.

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

Yes, that lawyer from The Castle that I was able to refer to last night in another speech referring to Senator Brown’s three-quarters of a million dollar slush fund comes to mind, Senator Fifield. It’s the vibe. That is what Minister Arbib is relying on here—the vibe. He says that there will be an imbalance. But I cannot see how there is an imbalance by allowing employer representation. At worst, as the minister said before, employers’ views are already there and are already taken into account; but we are told that the factors to be taken into account are the wishes of the members of the workplace group, and the extent to which particular employee organisations represent the employees in the workplace and the nature of that representation.

So it seems to me that we still do not really have a situation where employers are looked after in 137B. The employees’ views are already in the legislation, as I read out. Just for clarity, that is in 137B(1), subclauses (b) and (c). So the employees’ views are taken into account. I would be interested if the minister could point out in that regime of (a) to (f) where the employers’ views are taken into account. Fair Work Australia will take into account the consequences of not making the order for any employer or organisation concerned, the wishes of members of the workplace and the extent to which particular employee organisations represent the employees in the workplace and the nature of that representation. Why would it create an imbalance if you allowed the employers to have a say as well? This is just a one-way street and, if I might say, that is one of the tests that I have said we apply to this legislation and to amendments. We ask: does it impact small business or jobs adversely and does it have an unwarranted increase in union power? Clearly this allows the union to have a say but not the employer or employer organisations.

I think the minister then, after the word ‘imbalance’, relied on the word ‘inconsistency’ again but has not actually explained to us the inconsistency. Time is dragging on. I am sure I will not convince the minister otherwise, but for anybody who wants to study the development of public policy I suggest to them that these last few pages of Hansard would not be a good read for them in relation to government responses to opposition questions as to the detail of legislation.

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

In relation to the question that Senator Abetz raised about employers, under 137B(1)(e), in order for Fair Work Australia to consider this they will need to take the views of employers into account.

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

Where?

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

That is (e). For Fair Work Australia to be able to consider it, they will need to take into account the views of the employers.

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

Given the minister’s response, let us go through this in some considerable detail. Proposed section 137B(1) says, amongst other things:

(1)

In considering whether to make an order under subsection 137A(1) in relation to a particular workplace group, FWA must have regard to—

a number of things, including—

(b)

the wishes of the members of the workplace group …

Where on earth does it say in that section that Fair Work Australia must have regard to the wishes of the employer? It does not say that anywhere. What it does say is that Fair Work Australia may have regard to ‘the consequences of not making the order for any employer, employees or organisation concerned’. But that does not mean that they need to take the wishes of the employer into account. If that is what subsection (e) means, why do you need the specific subsection (b), which says that Fair Work Australia ‘must have regard to the wishes of the members of the workplace group’?

If this is going to be dealt with equitably, you would then be saying the opposition amendment is not needed but that you will delete subsection (b). We say it does make good sense to take into account the wishes of the members of the workplace group, and to specifically state that, but we also say it makes good sense to specifically state that the wishes of the employer of that particular workplace group should be taken into account as well. With great respect, Minister, what you are asserting is not in the legislation. Can I say to Senator Xenophon that the belt he has been told about by the government is fraying and I am not sure it is going to be doing the job that he was told it would do.

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

Of course, this has a direct effect on the worker. It comes back to freedom of association. That is why the workplace group is mentioned. But can we just go back to (e) again. For Fair Work Australia to consider the consequences of not making the order for any employer, they therefore must consider the views of employers. How can they take that into consideration without taking into consideration the views of employers? That is obviously just common sense, Senator.

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

If it is so commonsensical, the minister might explain to us why you have subparagraph (b), because subparagraph (e) refers to:

(e)

the consequences of not making the order for any employer, employees or organisation concerned …

I happen to agree with the minister that subparagraph (e) is a cover-all. It covers employers, employees and organisations concerned, which I assume could be either employer organisations or employee organisations, and covers the field quite neatly. But what is also in the clause is subclause (b), that Fair Work Australia ‘must have regard to the wishes of the members of the workplace group’, so why not the wishes of the employer? You cannot have this argument both ways. If the employer is sufficiently catered for in subclause (e), can you explain why the employee is not sufficiently covered in subclause (e)? Why do you need this—to use my own analogy—belt and braces approach for the purposes of employees but definitely not for employers?

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

Senator, I think I answered that question directly when I talked about the effect this will have on workers in relation to freedom of association with regard to (b). But can I just add that 137B(1)(e) requires Fair Work Australia to consider the consequences of not making the order for any employer, employees or organisation. It is reasonable to look at the consequences on an employer. Not all employees are members of a union. We look at the wishes of members and consequences to other employees and, of course, the employer.

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

I think I am going to save myself breath from now on because clearly the minister does not have a response to this. I fully agree with the minister that there are employees that are not members of unions. Subclause (e) says:

(e) the consequences of not making the order for any employer, employees or organisation concerned;

This clearly countenances employees. It does not just say, ‘employees who are members of a trade union’. It says ‘employees’ generically, irrespective of whether they are a member of a union or not. So, once again, the argument falls over. Having started off with ambiguity, uncertainty, imbalance and all the other excuses, with great respect, the rationale does not fit. But of course we know why the minister is insisting, in the face of overwhelming logic, and it is this. It is the ideology of the Labor Party and the fact that they know that they bought their way to power courtesy of the trade union movement’s contributions at the last election. Whenever there is a possibility to favour the trade union movement in legislation they will do so, even if it is at the expense of employers.

As I have said a number of times in this debate, employers are actually called employers for a very simple reason: they are the people that employ our fellow Australians. When employers lose confidence in the system, you see unemployment rise, and that is something that is starting to hang around the neck of this government in larger and larger proportions each and every single day. It is because of legislation such as this, not only because of the global financial crisis.

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

In response—and again I note that you were very brief given the time—we think this legislation does the job. As you have said in relation to subclause (e), it covers all. As you have also said, it does provide for the views of employers to be taken into consideration. It does do that. We are not going to redraft this on the floor of the Senate. Of course we have faith that Fair Work Australia will interpret it in the way it is written and certainly that employers’ views will be taken into consideration.

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

I simply finish on this. I daresay, despite the overwhelming logic and good argument, Senator Xenophon will not find his way clear to support the opposition amendments. As I result, I would not wish anybody to think that the fact that we will not be seeking to divide is an indication that we do not hold a very strong view in relation to this. I believe that the discussion in the Hansard will show that the coalition has put a very strong case forward, but given the time constraints we will not be seeking to divide.

Question negatived.

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

I move Greens amendment (1) on sheet 5818:

(1)    Schedule 3, page 25 (after line 29), after item 9, insert:

9A  All kinds of transitional instrument: application of better off overall test

(1)    FWA may make a determination under this item on application by a person covered by a transitional instrument.

(2)    If FWA is satisfied that the transitional instrument would not pass the better off overall test in section 193 of the FW Act, FWA may make any order that FWA considers appropriate to remedy the situation, including:

             (a)    an order terminating the instrument;

             (b)    an order varying the instrument to comply with the better off overall test.

This amendment relates to allowing Fair Work Australia to terminate transitional instruments that would not pass the better off overall test. We believe the biggest gap in the government’s transitional arrangements is letting unfair Work Choices AWAs continue virtually indefinitely. I raised this during my speech on the second reading and in fact raised it in debate on the forward with fairness bill in March last year. The ALP, quite rightly, spent the previous three years strenuously opposing Work Choices AWAs and their ability to undermine the award safety net. AWAs that ripped away wages and conditions from workers were at the forefront of the campaign against Work Choices and of course the ALP election victory. Yet the ALP is prepared to let those workers continue to be ripped off and denied collective bargaining until their agreements pass their nominal expiry date, and that can be as late as 2013. As I said in my speech on the second reading, Work Choices is not quite dead yet. It will have a slow death and it will not be dead until the last AWA is terminated.

The Greens do not believe the presence of statutory individual agreements that fall below the safety net represent a fair and just industrial relations system. The Australian Greens have held a consistent position since before the last election that substandard agreements, individual or collective, should be able to be terminated and the employee employed under the more favourable conditions of the award or a superior collective agreement that covers the employer. We moved amendments in respect of the Workplace Relations Amendment (Transition to Forward to with Fairness) Bill 2008 to provide a mechanism for employees to terminate unfair AWAs. These amendments were unfortunately not supported by the government and many workers have stayed on unfair AWAs ever since.

Workers must be given the opportunity to terminate agreements that do not meet the conditions of the new safety net. I include here, too, a number of employees who were employed on AWAs subsequent to the ALP being elected and then bringing in their legislation. The point of a safety net is that it is universal. It provides for wages and conditions that we as a community believe are the minimum that all workers should enjoy. The new, modern safety net must therefore be available to all workers. The Greens amendment provides for employees to apply to Fair Work Australia and for it to terminate or vary an agreement that would not pass the better off overall test. It is an amendment implementing recommendation No. 1 of the majority ALP senators’ report on this bill.

We believe that Australian workers must not be condemned to working under recognised substandard conditions. We do not believe they should be under those conditions any longer. We believe that the government had an opportunity to fix that. They have not taken it and we cannot understand, quite frankly, why they believe it is okay for certain workers to be under substandard conditions when the government had the opportunity to ensure that they are not. Because the government did not take that opportunity, this amendment provides for that. Nobody can say that AWAs are dead until workers are off them, which could be as far away as 2013. That puts paid to the government’s claims that AWAs are dead. They are not dead and the government have not done anything about getting those workers who are still subject to them off them. This amendment does that.

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

This amendment is based in large part on a recommendation made by the majority of the Senate Standing Committee on Education, Employment and Workplace Relations in its report into the inquiry into the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009. The government did not agree with that recommendation and accordingly will not be supporting this amendment. From 1 July until 31 December 2009, enterprise agreements will be assessed under the current ‘no disadvantage’ test, not the ‘better off overall’ test. This amendment would require Fair Work Australia to assess workplace instruments under different tests, depending on when they were made. This is simply not feasible from an administrative standpoint.

This amendment would also in effect require Fair Work Australia to retrospectively apply a test against instruments that, for the most part, have operated for some time. The government believes that it is simply not reasonable to shift the goalposts on employers and employees by having Fair Work Australia unilaterally terminate or vary agreements that were validly made between the parties under the laws in place at the time. It is true that under Work Choices employees were placed on unfair agreements. The Fair Work Act will consign those agreements to history. However, the government is mindful of the need to give certainty to all parties. The bill provides that once these agreements have reached their nominal expiry date, all of the options of the Fair Work system, including good faith bargaining, become available. As well, employees who are on substandard Work Choices agreements will have the full benefits of the National Employment Standards from 1 January 2010 as well as entitlement to be paid the relevant minimum wage for the employee’s classification. This will be the case whether or not the agreement has passed its nominal expiry date. These measures will go a significant way to mitigating the effects of those agreements.

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

This will surprise the Australian Greens, I am sure: the coalition will be opposing the Greens amendment! I forget the words that Senator Siewert used in relation to all of the opposition amendments, but I simply indicate to her that I adopt that form of words, other than changing the word ‘coalition’ to ‘Greens’.

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

It will come as no surprise to Senator Abetz that I am not shocked or surprised. We do not accept the government’s arguments on this point. The fact is that these workers are still going to be on AWAs. In view of the late time and the need to progress this debate, I am not going to call a division, but I would like it noted that neither the government nor the opposition supported these amendments. But I am not calling a division.

Question negatived.

by leave—I move Australian Greens amendments (2) and (3) on sheet 5818:

(2)    Schedule 3, item 18, page 29 (line 4) to page 30 (line 7), omit the item, substitute:

18  Individual agreement-based transitional instruments: automatic termination when enterprise agreement comes into operation

(1)    This item applies if:

             (a)    an enterprise agreement (the proposed enterprise agreement) is made that covers the employee and the employer; and

             (b)    the proposed enterprise agreement comes into operation.

(2)    If the employee and the employer are covered by an individual agreement-based transitional instrument, that agreement is terminated when the proposed enterprise agreement comes into operation.

(3)    Schedule 13, item 2, page 166 (lines 9 to 37), omit subitems (2) and (3), substitute:

(2)    The employee is taken, for the purposes of the FW Act, to be at that time an employee who is or will be covered by an enterprise agreement or a proposed enterprise agreement.

These two amendments pick up what we think is a persuasive argument made by Professor Andrew Stuart that new enterprise agreements should automatically replace any individual transitional arrangements. Again, these amendments implement a recommendation from the majority report of the Senate Standing Committee on Education, Employment and Workplace Relations inquiry into the bill. The amendments provide for AWAs or ITEAs to be terminated when an enterprise agreement covering an employee on an AWA or an ITEA comes into operation. Amendment (3) allows for employees on AWAs covered by a proposed enterprise agreement to engage in bargaining for that agreement.

Work Choices AWAs serve two purposes. They allow employers to provide substandard wages and conditions but also to de-unionise workplaces and thwart collective bargaining. The Greens amendments are an extension of the primary role of collective bargaining under the Fair Work Act. We believe that all workers who will be covered by an enterprise agreement should have the ability to participate in the negotiations for that agreement and to have that agreement apply to them. The conditional termination provisions in the bill do not go far enough in achieving this aim. The requirement for employers to agree to a conditional termination where the individual transition instrument has not passed its nominal expiry date means that few of these workers who are stuck on unfair AWAs for the next four years will have the opportunity to collectively bargain.

Both unions and employer groups indicated to the Senate inquiry that the conditional termination provisions would not be effective. We must remember that the workers stuck on the worst AWAs are likely to be the most vulnerable workers. Conditional termination provisions relying on the support of employers are going to be useless for this particular group of employees and workers. The amendments put forward by the Greens are designed to ensure that those workers who have lost the most under Work Choices have the best chance to regain fair conditions of employment. We do not want to see workers subjected to grossly inferior agreements for any longer than is absolutely necessary. I have articulated in this place, in debates on the various pieces of legislation on industrial relations, how Work Choices has impacted most significantly on vulnerable workers, and these amendments are particularly focused on those vulnerable workers. I commend the amendments 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

The government will oppose Australian Greens amendments (2) and (3). The government considers that the transitional arrangements contained in the bill will ensure a fair, certain and orderly transition to the new system for all employees and employers, including those covered by AWAs and ITEAs. The bill gives certainty to employees and employers by providing that AWAs and ITEAs will continue to apply until they are terminated. Once an AWA or ITEA has been terminated, an enterprise agreement that covers the employee and employer would then apply. It is important to emphasise that as soon as an AWA or ITEA reaches its nominal expiry dates either party may terminate the agreement unilaterally 90 days after Fair Work Australia has made its approval decision. The parties may also agree to terminate an AWA or ITEA at any time.

In addition to these termination provisions, the bill also provides that employees and employers covered by an AWA or ITEA may enter into a conditional termination which would enable the employee to fully participate in and benefit from collective bargaining for the proposed new enterprise agreement whether or not their individual agreement has passed its nominal expiry date. Conditional terminations will facilitate the orderly transition of employees and employers covered by an AWA or ITEA to a new enterprise agreement by terminating the individual agreement as soon as the proposed new enterprise agreement comes into operation.

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

As I said earlier, at the Senate inquiry employers, employees and unions indicated that they did not think that the conditional termination provisions would be effective. I must admit I cannot see them being effective either, particularly for that group of workers we are talking about who are most vulnerable. I know the minister will have seen the research that showed that the workers most affected by Work Choices were our most vulnerable workers in the community. They are the ones who have been subjected to no bargaining and unfair AWAs and have lost the most wages and conditions. You are talking about a group of people who are in situations where their employers are highly unlikely to use the conditional termination provisions. So I am asking why the government thinks the provisions are going to be effective when employers, employees and unions have indicated that they do not think they are going to be effective. A lot of this depends on that provision being effective. I would really like to know why the government thinks these provisions are going to be effective, particularly for that group of our most vulnerable workers.

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

This comes back to where we started with our election commitments—an orderly transition. We cannot overturn all the provisions, all the legislation of Work Choices overnight. This was a commitment that we made. This provides the orderly transition. But also, Senator Siewert, remember that for many of the workers on those sorts of agreements the national employment standards will apply.

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

I do not understand why the government thinks that automatically replacing transitional arrangements with the new enterprise agreements is not orderly. I do not think that the amendments that we are proposing will necessarily lead to some major disorder in our industrial relations system. I am wondering why the government thinks that they will.

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

If workers are on those agreements, once the agreement has reached its nominal expiry date then they can enter into a new agreement. That is the reason we believe we have the balance right here. And, again, there will be national employment standards, so if an agreement is below those standards then obviously those workers will benefit from those standards, again creating and putting fairness back into the system. That is why we think we have the balance right and that is why we think those workers will benefit and will not be disadvantaged in the long run.

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

With all due respect, you did not answer my question. I asked why you do not think this process would be orderly if one of the reasons for not supporting it is that you wanted an orderly process and you promised an orderly process. One of the issues that you raised in response to my previous question was the nominal expiry date. Can you confirm that in some instances the nominal expiry date is in fact 2013? So you are talking about a considerable period of time between now and the nominal expiry date before these employees can be covered.

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

There is a simple answer to that. To do what you say—to take away all the conditions under an agreement, an AWA or a ITEA, and replace it with a collective agreement—would mean those workers would not get a vote on it, so they would lose those conditions. That is why we believe this is a more orderly transition.

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

That is a point that we are also making, that workers should have the right to be involved in discussion of a collective agreement. That would cover it. I will not be calling a division on these amendments, in view of the time, but I would like it noted that the government did not support these amendments.

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

And the coalition does not support these amendments!

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

And the coalition does not either. Senator Abetz, I took that from the comments you made earlier that you were not supporting any of the Green amendments. I suppose you did make the comment that you were following in my footsteps. At the beginning of the debate last night I did not say we were opposing all your amendments, so I suppose I should have done so and not kept you in suspense. It would have been fairer. I do agree. I will not be calling a division but I would like it noted that the amendments were not supported.

Question negatived.

Bills, as amended, agreed to.

Bills reported with amendments; report adopted.