Helen Coonan (NSW, Liberal Party, Shadow Minister for Finance, Competition Policy and Deregulation) Share this | Link to this | Hansard source

The coalition does not support passage of the Fair Work Amendment (State Referrals and Other Measures) Bill 2009. While we are supportive of a national workplace relations system, we do have several concerns about the way the bill aims to achieve this. These concerns were detailed in our coalition senators’ minority report and I do not need to repeat them here in great detail. However, in summary, our concerns were, firstly, that this bill effectively hands control of the Commonwealth fair work laws to the states and, secondly, that the bill would place thousands of businesses and small workplaces at the mercy of Labor’s botched system of modern awards.

Although we appreciate that we do not have the support of the Senate for the coalition amendments that would have addressed our concerns, I would nonetheless like to record their purpose and effect. Our two amendments, when considered conjunctively, would have had the effect of removing the need for what the bill describes as the ‘fundamental workplace relations principles’ and retaining the existing termination of state reference provisions contained in the Fair Work Act as they currently apply to Victoria, while expanding them to include any other state which has referred its industrial relations powers to the Commonwealth. These amendments, had they had the support of the Senate, would have removed the need for the complex and clumsy termination of state reference provisions in the bill as proposed. They would have simplified the bill, while enabling it to take one step further and build on the Howard government reform of achieving a truly national workplace relations system.

In the interests of time, and recognising the view of the Senate on our amendments, they will not be moved. Despite our support for achieving a national set of workplace laws, we do not support this bill as drafted for the reasons I have outlined. It pursued a laudable aim, I must say; however, it does so in a manner unacceptable to the coalition.

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

I rise to express the Greens’ support for the Fair Work Amendment (State Referrals and Other Measures) Bill 2009. The package of fair work legislation represents a significant shift in Australia’s industrial relations framework and laws. The use of the corporations power with Work Choices to cover industrial relations started this shift and this bill continues this centralisation of power. The Greens have never been comfortable with the use of corporations power to underpin workplace relations laws, and particularly the way both Liberal and ALP governments have been prepared to consign to the dustbin of history the conciliation and arbitration power in our Constitution. Having said that, we acknowledge that this government has acted to address the confusion that the use of the corporations powers entails by negotiating for most of the states to refer their industrial relations powers. A key problem created by the use of the corporations powers is the difficulty for many employers, particularly those in the social and community service sector, to know which jurisdiction they are in. We welcome the fact that the relevant states have agreed to refer powers to resolve this uncertainty.

We also welcome the agreement that states can decide whether to refer powers with regard to local councils and state government corporations. States should retain a choice in these matters given that it is their prerogative to refer powers or not. We note the exclusion of utility and energy generation corporations from these provisions. These will stay in the federal system. We share the concerns expressed by unions that it should be a choice of the states whether to refer powers in relation to these entities as well. However, we respect the decision of the referring states as to the terms on which they are referring powers.

My home state of Western Australia is the only state refusing to refer powers. We believe this has terrible consequences for WA workers. The confusion mentioned before will continue in WA, with SACS workers, local council workers and others not knowing whether they are in the federal or state systems. Despite the failings of the Fair Work Act, which I detailed at some length in the course of the debate on that bill, I fear that the Western Australian government has plans to once again submit WA workers to a Work Choices-like regime. There has been significant comment in the media about that.

We support calls by the union movement that the Fair Work Act should allow state employees to opt into the federal system. This could be achieved by using the conciliation and arbitration powers of our Constitution. We will continue to raise this issue, as it has particular relevance and importance to workers in Western Australia.

I will not talk about the coalition’s proposed amendments, as they have now been withdrawn. I reiterate our support for this bill, despite our concerns about some of the shortcomings of the Fair Work Act. We also note that the union movement and the overwhelming majority of the business community and representatives of employers want this bill to pass now. We will support this legislation.

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

I indicate my conditional support for the Fair Work Amendment (State Referrals and Other Measures) Bill 2009. As documented in the explanatory memorandum, this bill amends the Fair Work Act 2009 to enable states to refer workplace relations matters to the Commonwealth for the purpose of paragraph 51, subparagraph 37 of the Constitution. The bill also amends the Fair Work (Transitional Provisions and Consequential Amendments) Act to establish arrangements for employees and employers transitioning from referring state systems to the national workplace relations system.

I am conscious of the number of matters in the Senate today, and I will be as brief as I can. In recent weeks my office has been in extensive discussions with the office of Minister Gillard in relation to this bill. One of the major concerns that I have raised has been the handling of award modernisation and, particularly, the implications for the horticulture industry in South Australia—particularly in the Riverland. In response to these concerns, the Deputy Prime Minister issued a directive on 26 August this year for the AIRC to consider as special the conditions of horticulture: piece rates, the nature of picking times, casual work and working hours. This consideration process involves the AIRC taking submissions to vary the award through consultation, with the final ruling due by the end of the year. The new federal award is to commence on 1 January 2010 and this is just a short time frame for the horticultural industry to respond to the ruling and possibly to adjust its practices.

I raised these concerns with the minister and, through numerous discussions, have agreed on a statement on the details of the arrangements for the transition of the horticulture industry into the modern award framework, which the government will incorporate into Hansard. I wish to indicate that I am reassured by the government’s commitment and, with the incorporation of this text, I will support this bill.

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

The Rudd government was elected with a mandate to abolish Work Choices and bring balance and fairness back to Australian workplaces. We also undertook to pursue a national workplace relations system to secure Australia’s future economic prosperity. We achieved the first step with the passage of the Fair Work Bill 2009. Today the Senate will decide the fate of a major microeconomic reform, the creation of a single national workplace relations system for the private sector. For the first time in Australia’s history the state governments, except Western Australia, have all taken steps to refer workplace relations matters to the Commonwealth.

Australian businesses recognise that the national workplace relations system that will be created by this bill is of crucial importance. There is strong support for the national system, with major business groups around the country—including ACCI, the National Farmers Federation, the Australian Mines and Metals Association and the Australian Industry Group—all calling for this reform. This will be a major piece of economic and microeconomic reform that will improve the productivity of businesses across the country. I commend the bill to the Senate.

I seek leave to incorporate a response to Senator Xenophon’s concerns.

Leave granted.

The document read as follows—

I propose now to address certain issues raised by Senator Xenophon with the Government concerning the horticulture industry and its modern award.

The Government is delivering award modernisation, being to create around 125 awards from the thousands of overlapping state and federal awards that currently apply. This is an enormous task for the Australian Industrial Relations Commission (the AIRC), whose members are doing an outstanding job in delivering this major economic reform.

Concerns have been raised however in relation to a small number of those modern awards.

Representatives of the South Australian horticulture and wine industries expressed concerns earlier this year about the potential cost increases that would arise from the proposed modern awards applying to these sectors, particularly in relation to changes made to award provisions on piecework, casual loading, span of ordinary hours, overtime and penalty rates.

Senator Xenophon raised these issues with the Deputy Prime Minister, as did representatives of the industry. The Deputy Prime Minister gave careful personal attention to these issues and as a result, varied her award modernisation request. The amended request requires the Commission to have regard to the current terms and conditions that apply in the industry and the need for flexible hours of work arrangements given the seasonal factors that are critical to the viability of the industry.

The hearings to finalise the horticulture industry award are continuing with the full involvement of industry parties. The Government is confident that the Commission’s ultimate decision will accord in full with the Minister’s varied award modernisation request and will meet the needs of the industry.

Senator Xenophon has also raised concerns on behalf of the horticulture industry that, given these further changes are yet to be made to the modern award and it commences on 1 January 2010, there needs to be sufficient time for the industry to understand the new award. I wish to make a number of points on this issue.

First, the AIRC has published a model clause setting out five year transitional arrangements. Changes from the state standard of remuneration to the new national standard will be introduced through five annual increments (up or down) on 1 July of each year.

This means that for all employers in the federal system, there won’t be any changes to remuneration that come into practical operation until 1 July 2010. The status quo will continue in respect of all pay related matters until that time.

The Commission’s decision on transitional arrangements will ensure employers will in effect have a six month grace period to become familiar with the new modern award before they are at risk of being non-compliant with remuneration related entitlements.

Secondly, those horticultural employers referred into the national system by the States will stay on their state-based award conditions until 1 January 2011. During those 12 months, Fair Work Australia will determine appropriate transitional arrangements in consultation with those affected. Referred employers will be aligned into the existing phase-in arrangements in the modern award. This means there will be plenty of time for those employers to adapt to the new system.

Thirdly, following Senator Xenophon’s representations, the Government wishes to record that if, following the Commission’s determination on the final content of the modern award, an application is made by any party for revised transitional arrangements in respect of the Horticulture Modern Award, the Government would make a submission that the AIRC, in considering that application, should have regard to the following matters:

• First, the particular features of the industry, including seasonal demands;
• Second whether it would be desirable for the industry to have an additional period of time to become familiar with the terms of the award, having regard to:
• the nature of any changes made to the modern award as a result of the applications to vary, and the timing of the announcement of those changes compared to their commencement of operation; and
• the nature of employers in the horticulture industry, given the predominance of small businesses.

I also want to outline the steps being taken by the Government to assist employees and employers in the horticulture sector to have the information they need to know their rights and comply with their obligations. The partners in the Horticulture Industry Shared Compliance Program—the industry associations and the AWU—will work cooperatively together with the Fair Work Ombudsman to educate employers and employees and to promote compliance. This is an innovative program and demonstrates the Government’s approach to cooperative workplace relations.

The emphasis of this program is education, rather than prosecution. What this means is that while the FWO will still be able to prosecute for serious and blatant breaches of the award, the majority of formal compliance activity will not commence until July 2011 at the earliest.

I thank Senator Xenophon for the constructive way in which he has raised these issues with the Government and trust that he is satisfied that the Government has responded appropriately.

Question agreed to.

Bill read a second time.