Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If I may, I have five general questions before we get to the specific amendments. The first question I have for the Parliamentary Secretary is: can the government guarantee that no worker will be left worse off as a result of this bill?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Before I respond to Senator Abetz's question, I might commence by tabling a supplementary explanatory memorandum relating to government amendments to be moved to this bill. I now move to the general discussion.

The government is interested in protecting employees' entitlements. On the basis of there being disadvantage, that is obviously not a component of the government's approach here.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

That was not the question. The question was: can the government guarantee that no worker will be left worse off? As I pointed out in my second reading speech, uncontradicted anywhere thus far, an employee who takes a voluntary redundancy can, in fact, be denied employment by a national scheme employer because they would be bringing with them terms and conditions that would not make it favourable for being employed by the new employer. As a result, this would leave that person without a job. We might be able to conclude that that worker would, in fact, be worse off having been made redundant and denied the opportunity of a new job.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I am somewhat bemused by the nature of Senator Abetz's question here because I can remember the period in which the opposition, when in government, enabled employers to offer employment solely on the basis of an Australian workplace agreement that would leave workers disadvantaged.

With respect to the current matter and the current issue regarding the transfer of employment, the review of the Fair Work Act found no evidence of workers being worse off under the transfer of business.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Can the minister advise the Senate whether the review panel of the Fair Work Act had before it the bill we are discussing today? The answer to that is no. Therefore, to try to rely on the review panel's consideration of the Fair Work Act in circumstances where this bill had not even been considered, let alone put before it, and no submissions of this nature put before the review panel, is less than disingenuous.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Again, it bemuses me that Senator Abetz suggests it is less than disingenuous, because the amendments that he is proposing go beyond what was recommended by the independent panel which reviewed the Fair Work Act. Similarly, any justification for those amendments would be as disingenuous if you are interested in withdrawing them.

This bill seeks to apply as far as possible the current provisions of the Fair Work Act. Let me go to the existing transfer-of-business rules and the suggestion that they do not work. The government completely rejects any suggestion that current transfer-of-business rules operate unfairly or act as a disincentive to hiring transferring employees. The recent review of the act looked at transfer of business in detail and found that the evidence shows that the existing business arrangements deliver a balanced framework that provides both fairness and flexibility to both employees and employers. What finer statement could you find in terms of the standing of those existing provisions which we are seeking to progress here?

Specifically, the review panel said:

… there is a clear need to protect employees in transfer of business situations. The alternative is to allow employees to be exploited by the structuring of businesses and contracting arrangements. On the basis of stakeholder submissions, academic advice … analysis of cases under the provisions and an examination of the provisions themselves, the broader legislative definition succeeds in providing better protections for employees than the previous arrangements did.

Finally, it said:

… the scope for employers to determine the appropriate outcome for their business on application to FWA provides significant flexibility.

The government is committed to protecting the rights of Australian workers and takes very seriously any attempt by an employer to restructure its business operations in a way that would undermine employees' or future employees' entitlements.

There are some who might say that this bill is unnecessary because employers can already agree in the course of contractual negotiations for transferring employees to maintain their existing terms and conditions of employment with the new employer. However, that approach does not provide certainty for employees and it does not provide guaranteed protection for their hard-earned and negotiated entitlements.

The transfer-of-business rules in part 2-8 of the Fair Work Act only apply where both the old and new employers are covered by the national workplace relations system. This includes transfers of business that affect employees in the Commonwealth, Victorian, Northern Territory and ACT public sectors but not in the other jurisdictions. Without these reforms, public sector employees in other jurisdictions are at risk of losing their existing terms and conditions of employment, negotiated in good faith, because of a decision by a state government employer to sell assets or outsource work. That is why this bill is necessary and a priority. I stress the time limits issue here; it is a priority for the government, given decisions by some state governments.

In broader policy discussions about the current transfer-of-business provisions in the Fair Work Act the minister continues to discuss the review panel's report and recommendations with stakeholders and he has publicly confirmed that none of the remaining recommendations are ruled in or ruled out.

Finally I want to touch on the point Senator Abetz made about any potential discouragement for new employers from employing former state employees. This claim is often bandied about, that the transfer-of-business provisions are some kind of barrier to new employers hiring transferring employees. This issue was considered in some detail in the recent review of the Fair Work Act. It was argued that the transfer-of-business provisions reduced the employment prospects of workers. However, after all of the evidence put to the Fair Work review panel, they were not convinced that the provisions have had the negative effect that Senator Abetz proposes. To the contrary, the panel concluded that the scope for employers to determine the appropriate outcome for their businesses on application to Fair Work Australia provided significant flexibility.

The government's policy in relation to the transfer-of-business provisions in the Fair Work Act has been consistently clear—that is, employees should be able to retain the benefit of their terms and conditions of employment and their entitlements if their employer changes but the work they perform stays the same. This bill maintains that policy and extends it to certain former state public sector employees to also ensure that their terms and conditions of employment are protected where a transfer of business occurs between a state public sector employer and a national system employer.

On any measure, there is a clear need to protect employees' transfer-of-business situations. The alternative is to allow employees to be exploited by the structuring of businesses and contracting arrangements. If the opposition does not support the current transfer-of-business provisions, what is their alternative? The alternative is to go back to the old and complex transmission-of-business rules which sometimes resulted in employees losing the benefit of their industrial instruments even though they were performing exactly the same work for the new employer. The government does not support a return to those rules.

As under existing transfer-of-business provisions, where employers have concerns about transferring workplace instruments they can apply to Fair Work Australia for orders to ensure that the transferring workplace instruments better align with their business operations. The Fair Work Act report noted that of the 142 applications made to Fair Work Australia under the Fair Work Act transfer-of-business provisions up until March 2012:

… generally settled quickly, with hearings generally less than an hour long, and regularly less than half an hour. Almost all applications were granted, with a small proportion adjourned for various reasons and a smaller proportion dismissed on their merits.

The report makes clear that the application process is working efficiently and did not recommend any changes to these provisions.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I am sure that if Senator Collins ever loses her employment in this place—

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I already have; remember?

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

she will be more than gainfully employed as a cherry picker, because all I would invite her to do is have a look at pages 205 and 206 of the Fair Work Act review panel report in relation to this matter.

If everything were so good in relation to the current transfer-of-business regime, why would this hand-picked panel with few terms of reference nevertheless make recommendation 38? In relation to what the test ought be, we make no apology that we believe that the collective wisdom of the High Court in this area was a collective wisdom that should not be thrown out and scoffed at as lightly as the minister has done just now, and as Mr Shorten and Ms Gillard have in relation to the legislative framework. We make no apology for saying we believe the High Court—ultimately, the highest independent umpire in the country—got the balance right. Labor can say Ms Gillard and Mr Shorten, both previously trade union operatives, have got the balance right between themselves, or that the High Court actually might have got the balance right. Chances are, most Australians would take a punt on the High Court having got it right, rather than Ms Gillard and Mr Shorten.

If the recommendations of the panel were to be implemented, would employees in state governments who take a voluntary redundancy be covered by this bill, or would the requirements of a transfer, as defined in the bill, not be met?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

We are still consulting on the review recommendations. It does not directly pertain to what is before us here.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

This is one of the difficulties when you rush in legislation which does not come from anywhere other than a political agenda in either the office of the Prime Minister or the minister. The issues that are in this bill were not canvassed in the 250 submissions before the Fair Work Act Review Panel. The Fair Work Act Review Panel did not recommend this legislation, but the panel did make a recommendation in relation to voluntary redundancies, which is exceptionally important. I understand that in Queensland, out of the roughly 12,000 redundancies that have been announced, 10,400 are expected to be voluntary redundancies—and very generous redundancies. Here we have the government legislating one thing which is going to fly in the face of its own hand-picked review panel. We are asking: where is the justification for this when you have a firm recommendation from the review panel against what you are doing?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

If one point Senator Abetz makes is critical it is the one for timeliness: the need for employees in Queensland to have a clearer understanding of their circumstances as they contemplate what the Queensland government forecasts may indeed be voluntary redundancies and how those circumstances may impact upon them. In response to Senator Abetz's other issues, the government's policy in relation to transfer-of-business protections has been consistently clear—that is, that employees should be able to retain the benefit of their terms and conditions of employment and their entitlements where their employer changes because their old employer has decided to sell assets or to outsource their jobs but where the work they perform stays the same. However, where an employee has already received a redundancy payment then the employee's period of service will not be counted again for the purpose of calculating the entitlement with the new employer—that is, the bill ensures that employees cannot double dip.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Can the minister explain why Public Service redundancies made by the previous Queensland Labor government did not warrant this legislation, but redundancies by the LNP government now somehow do require this legislation? What is the moral difference between a Labor redundancy and an LNP redundancy other than cheap political point-scoring?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

There is no moral difference between a Liberal National Party redundancy and a Labor state government redundancy, Senator, and that is why we are taking a national approach to these measures rather than, as I think you suggested earlier, in this case specifically a cherry-picking states approach. Any observer to this debate, given the circumstances that have played out through at least a couple of the state governments, would understand the scale and magnificence that is relevant here. You referred to claims by the Queensland government that a significant proportion of the redundancies would be voluntary—I think there are many Queenslanders that might have a different view.

The government has been concerned for some time that announcements by certain state governments to outsource work and sell assets could unfairly impact on employees' terms and conditions of employment and their existing entitlements. That is why in September of this year, the government announced that it would amend the Fair Work Act to ensure that employees' terms and conditions of employment are protected where the transfer of business occurs between state public sector employer and national system employer. The government understands that business restructuring is a legitimate and often necessary task. However, the government does not accept that employees' terms and conditions of employment should be undermined or entitlements put at risk where the employer changes but the work stays the same.

The principle also applies to employees whose jobs are outsourced by state governments where employees in Commonwealth, Victorian, Northern Territory and ACT public sectors are already covered by the Fair Work Act and have had the benefit of transfer-of-business protections for almost three years. The bill is merely extending this benefit to other former state employees not of any political character in the remaining states. How can anyone take any serious issue with that?

Without these reforms, public sector employees in other jurisdictions are at risk of losing their existing terms and conditions of employment negotiated in good faith because of a decision by a state government employer to sell assets or outsource work, many recent announcements of which have occurred. That is why this bill is necessary and a priority for the government.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If I may quickly correct the record, I understand that all the Queensland state Public Service redundancies will in fact be voluntary redundancies. Are we to believe that this legislation was not necessary for redundancies initiated and announced by state Labor in Queensland because they were fewer in number than those announced by Mr Newman, the LNP Premier of Queensland, so the government's only rationale for not having brought this vital piece of legislation in earlier is that it was the numbers in Queensland?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I think that if Senator Abetz looks at my earlier comment he will see that I said he had offered us some interesting numbers in Queensland but that it was the announcements principally of both the New South Wales government and the Queensland government.

I am interested that Senator Abetz highlights, at least at this point in time, that the Queensland government suggests that all of the redundancies will be voluntary. I do not personally recall that it was a component of their initial announcement. It obviously concerned many people in Queensland and the concern, particularly from my awareness of education cuts, is still moving throughout New South Wales as well.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

It is quite obvious that the motivation for this legislation is: Labor redundancies are okay; LNP redundancies are not okay. This is why this legislation was rushed in and why it was done in such a hashed way. So possibly the minister can explain to the Senate the reason this bill was forced through the House of Representatives so quickly only to now have an amended explanatory memorandum and the need for four tranches of government amendments.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I think I have covered the issues around timeliness here and the number of job losses that have been highlighted in recent times by both Queensland and New South Wales governments.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Before introducing this bill did the minister provide state governments with the three months notice that they are required to provide under the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector? If not, why not?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

The government is of the view that it complied with the obligations under the Intergovernmental Agreement for a National Workplace Relations System for the Private Sector. The government was concerned to introduce the bill as a matter of urgency to ensure that appropriate protections were in place as soon as possible for affected employees transitioning into the national system. On 21 September Minister Shorten wrote to state and territory ministers and members of the National Workplace Relations Consultative Council advising them of the government's proposal to amend the Fair Work Act to extend transfer of business protections and invited their views. On 2 October departmental officials met with state and territory officers, excluding the ACT, which was unable to attend. On 3 October departmental officers met with representatives of the ACTU, Ai Group and ACCI. On 15 October departmental officers met with officers from Fair Work Australia and the Fair Work Ombudsman.

ACCI, Ai Group, the BCA, Western Australia, Queensland and New South Wales have written to the minister on various dates expressing opposition to the bill and concerns about consultation. On 15 November Minister Shorten wrote to his state and territory counterparts advising that the Australian government intended to move government amendments to the bill. On 16 November draft provisions were circulated to senior state and territory officials for comment by 19 November. Only New South Wales and Victoria have responded to that invitation to date and, amongst other things, New South Wales reiterated strong concerns about lack of consultation on the issue of importance to the states, but Victoria did not express any concerns at the departmental level.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Those time frames are very interesting. Do they fit within the three-months-notice period that is required under the intergovernmental agreement? Clearly not, so why not?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

The government is confident that it has met the terms of the IGA.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Well, that is one of those obfuscating answers, so let us do this in a painfully slow manner. Minister, can you advise the first time that a state government was advised of the government's intention to move this bill?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Senator Abetz, I think I gave you all of those relevant dates.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I am a bit slow. If the minister could repeat the first date, I would be much obliged.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

It was 21 September.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Does the minister agree with my maths that three months from 21 September takes us through to 21 December? The government is supposed to provide three months notice under the intergovernmental agreement. How does she assert that the government is not in breach of the intergovernmental agreement when with my state school maths I work out that three months from 21 September takes us to 21 December before any legislation should be introduced?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Senator Abetz, you might seek to delay a matter as important as this by counting down exactly three months but the critical reason I gave you all of the dates and the background was to highlight the fact that, even though it was some small bit short of three months, sufficient time was allowed for notice to be provided to state governments and relevant parties and sufficient time has also been there for those parties or state governments to respond and indeed inform government amendments to the bill.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

So why do we have this three-months notice period in the intergovernmental agreement if you believe that you can just break it willy-nilly, as you clearly have, in relation to this legislation? In relation to informing state governments on 21 September, can you advise how that occurred? I suggest it was by media release on 21 September.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

No, Senator Abetz, it was not by media release; it was by correspondence. The government does not advise states and territories and significant stakeholders in the workplace relations system by media release. There may have been a media release that aligned in timing but certainly by correspondence we wrote to the parties that I highlighted. But I go back to your earlier point about the three months. The three months is an important guide to ensure that appropriate consultation occurs within the IGA but this is not a case of willy-nilly; this is the case of urgency for the entitlements of a significant number of employees. As I highlighted before, the government went through consultation processes that were only a few days short of the three months, but the important thing is that the government went through those processes and enabled states and territories to respond and indeed inform amendments that were moved through the House of Representatives.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

'A few days short'! Really, Minister, 21 days in December and four days in November would make 25 days out of a three-month period—and that is just 'a few days short'! Nobody believes that that is a credible explanation in all the circumstances. Now, in relation to the letter, was that a letter by ordinary mail to be delivered by Australia Post or was it by email?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I will need to confirm that, Senator Abetz, but at the moment I am advised that was by email.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Before or after the media release and how close to the media release?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I will take that on notice as well.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I think you might find that some of the correspondence in fact arrived at various state governments a few days after the release. As a result it will be very interesting to see how this communication was made to the state governments. Mr Temporary Chairman, we still do not have any genuine explanation as to why the High Court definition is a failure. We still do not have any real rationale for why this legislation has been rushed and why there has now been the need for amendments in this place with an amended explanatory memorandum. We still have not been told why Queensland Labor redundancies were okay and not worthy of legislation but LNP redundancies somehow were, which, of course, is putting many workers at risk of gaining re-employment and, of course, we have not had a response—a genuine response—as to whether the government can guarantee that no worker will be worse off as a result of this bill. So they were the general issues that we sought to canvass in this part of the committee process and, unless there are any other general questions, I suggest we move on to the amendments, noting that the government, in its rush to get this legislation through—forcing it through the other place—are now in the humiliating position of having to move four tranches of their own amendments.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I seek leave to move all of the government's amendments together.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

We might need to be a little more specific on that, Minister. We have a number of batches. Will you come to exactly which ones you will move by leave together.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I seek to move all.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I indicate now that we will divide.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

If that is the case, I will commence with the first set of amendments and, in doing so, will make some general remarks which will cover essentially all of the government's amendments. We can revisit in further detail as we go along, if Senator Abetz is happy with that approach.

The TEMPORARY CHAIRMAN: So leave is sought?

Yes.

Leave granted.

I move government amendments (1), (3) to (10), (13), (15) and (16) together:

(1) Schedule 1, item 1, page 4 (lines 2 and 3), omit "means a national system employee, and employer means a national system employer", substitute "and employer have their ordinary meanings".

(3) Schedule 1, item 1, page 7 (lines 7 to 20), omit subsection 768AI(1), substitute:

(1) If, immediately before the termination time of a transferring employee:

  (a) a State award (the original State award) was in operation under the State industrial law of the State; and

  (b) the original State award covered (however described in the original State award or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State award also covered other persons);

then a copied State award for the transferring employee is taken to come into operation immediately after the termination time.

(4) Schedule 1, item 1, page 8 (line 21) to page 9 (line 3), omit subsection 768AK(1), substitute:

(1) If, immediately before the termination time of a transferring employee:

  (a) a State employment agreement (the original State agreement) was in operation under a State industrial law of the State; and

  (b) the original State agreement covered (however described in the original State agreement or a relevant law of the State) the old State employer and the transferring employee (whether or not the original State agreement also covered other persons);

then a copied State employment agreement for the transferring employee is taken to come into operation immediately after the termination time.

(5) Schedule 1, item 1, page 20 (before line 8), before subsection 768AX(1), insert:

Application of this section

  (1A) This section applies if there is, or is likely to be, a transfer of business.

(6) Schedule 1, item 1, page 20 (line 31) to page 21 (line 34), omit subsections 768AX(2) and (3), substitute:

Who may apply for a variation

(2) FWA may make a variation under subsection (1):

  (a) on its own initiative; or

  (b) on application by a person who is, or is likely to be, covered by the copied State instrument; or

  (c) on application by an employee organisation that is entitled to represent the industrial interests of an employee who is, or is likely to be, covered by the copied State instrument.

     Note: The copied State instrument for the transferring employee may also cover another transferring employee or a non transferring employee if a consolidation order is made.

Matters that FWA must take into account

(3) In deciding whether to make a variation under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the copied State instrument as varied; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the copied State instrument as varied in relation to their terms and conditions of employment;

  (c) if the copied State instrument is a copied State employment agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument, without the variation, would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument, without the variation;

  (f) the degree of business synergy between the copied State instrument, without the variation, and any workplace instrument that already covers the new employer;

  (g) the public interest.

(7) Schedule 1, item 1, page 22 (lines 15 to 20), omit subsection 768AX(6), substitute:

When variation may be made

(6) A variation may be made under subsection (1) in relation to a copied State instrument of a transferring employee:

  (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

  (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Restriction on when variation may come into operation

(7) A variation under subsection (1) operates from the day specified in the variation, which may be a day before the variation is made.

(8) Schedule 1, item 1, page 23 (after line 13), after section 768AZ, insert:

768AZA Orders in relation to a transfer of business

  (1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

  (2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:

     (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

     (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

(9) Schedule 1, item 1, page 23 (line 27) to page 24 (line 30), omit subsections 768BA(2), (3) and (4), substitute:

Who may apply for an order

(2) FWA may make an order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a transferring employee or an employee who is likely to be a transferring employee;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

     (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

(3) In deciding whether to make an order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage as a result of the copied State instrument covering the new employer;

  (f) the degree of business synergy between the copied State instrument and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(4) An order under subsection (1) must not come into operation in relation to a particular transferring employee before the later of the following:

  (a) the transferring employee's re employment time;

  (b) the day on which the order is made.

(10) Schedule 1, item 1, page 25 (line 17) to page 30 (line 15), omit Division 7, substitute:

Division 7—FWA orders about consolidating copied State instruments etc.

Subdivision A—Guide to this Division

768BC What this Division is about

This Division allows FWA to consolidate the various workplace instruments that may apply in the new employer's workplace. It achieves this by allowing FWA to make an order that a copied State instrument for a particular transferring employee is also a copied State instrument for one or more other transferring employees or non transferring employees.

Subdivision B deals with consolidating copied State instruments for transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for a transferring employee ("employee A") is also the copied State instrument for one or more other transferring employees. If FWA makes a consolidation order for those other transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those other transferring employees (see section 768BF).

Subdivision C deals with non transferring employees. Under that Subdivision, FWA may make an order that the copied State instrument for employee A (who is a transferring employee) is also the copied State instrument for one or more non transferring employees. If FWA makes a consolidation order for those non transferring employees, then this Act is modified so that the copied State instrument for employee A is also the copied State instrument for those non transferring employees (see section 768BI).

768BCA Orders in relation to a transfer of business

(1) This Division provides for orders to be made if there is, or is likely to be, a transfer of business.

(2) An order may be made under this Division in relation to a copied State instrument of a transferring employee:

  (a) before the copied State instrument comes into operation, if it is likely that the instrument will come into operation; and

  (b) before the employee is a transferring employee, if it is likely that the employee will become a transferring employee.

Subdivision B—Consolidation orders in relation to transferring employees

768BD Consolidation orders in relation to transferring employees

Consolidation order

(1) FWA may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) is also a copied State instrument for one or more other transferring employees.

Who may apply for order

(2) FWA may make a consolidation order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a transferring employee, or an employee who is likely to be a transferring employee;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i).

Matters that FWA must take into account

(3) In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage if the order were not made;

  (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(4) A consolidation order under subsection (1) must not come into operation in relation to a particular transferring employee (other than employee A) before the later of the following:

  (a) the transferring employee's re employment time;

  (b) the day on which the order is made.

768BE Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BD(1) must specify when the copied State instrument for employee A applies to, and covers:

  (a) another transferring employee; and

  (b) the new employer in relation to the other transferring employee; and

  (c) an employee organisation in relation to the other transferring employee;

which must not be before the other transferring employee's re employment time.

(2) Once the consolidation order comes into operation in relation to the other transferring employee, the copied State instrument for the other transferring employee ceases to operate.

768BF Effect of this Act after a consolidation order is made

  If FWA makes a consolidation order under subsection 768BD(1), then this Act has effect in relation to a particular transferring employee (other than employee A), from the time the order comes into operation in relation to that employee, as if a reference in relation to that employee to the copied State instrument for that employee were a reference to the copied State instrument for employee A.

Subdivision C—Consolidation orders in relation to non transferring employees

768BG Consolidation orders in relation to non transferring employees

Consolidation order

(1) FWA may make an order (a consolidation order) that a copied State instrument for a transferring employee (employee A) also is, or will be, a copied State instrument for one or more non transferring employees who perform, or are likely to perform, the transferring work.

Non transferring employees

(2) A non transferring employee of a new employer is a national system employee of the new employer who is not a transferring employee.

Who may apply for order

(3) FWA may make a consolidation order under subsection (1):

  (a) on its own initiative; or

  (b) on application by any of the following:

     (i) a non transferring employee who performs, or is likely to perform, the transferring work;

     (ii) the new employer or a person who is likely to be the new employer;

     (iii) an employee organisation that is entitled to represent the industrial interests of an employee referred to in subparagraph (i);

     (iv) if the application relates to an enterprise agreement—an employee organisation that is, or is likely to be, covered by the agreement.

Matters that FWA must take into account

(4) In deciding whether to make a consolidation order under subsection (1), FWA must take into account the following:

  (a) the views of:

     (i) the employees who would be affected by the order; and

     (ii) the new employer or a person who is likely to be the new employer;

  (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment;

  (c) if the order relates to a copied State employment agreement or an enterprise agreement—the nominal expiry date of the agreement;

  (d) whether the copied State instrument for employee A would have a negative impact on the productivity of the new employer's workplace;

  (e) whether the new employer would incur significant economic disadvantage if the order were not made;

  (f) the degree of business synergy between the copied State instrument for employee A and any workplace instrument that already covers the new employer;

  (g) the public interest.

Restriction on when order may come into operation

(5) A consolidation order under subsection (1) must not come into operation in relation to a particular non transferring employee before the later of the following:

  (a) the time when the non transferring employee starts to perform the transferring work for the new employer;

  (b) the day on which the order is made.

768BH Consolidation order to deal with application and coverage

(1) A consolidation order under subsection 768BG(1) must specify when the copied State instrument for employee A applies to, and covers:

  (a) a non transferring employee; and

  (b) the new employer in relation to the non transferring employee; and

     (c) an employee organisation in relation to the non transferring employee;

in relation to the transferring work.

(2) If an enterprise agreement covers the non transferring employee and the new employer, the order must also specify that the agreement does not cover:

  (a) the non transferring employee; or

  (b) the new employer in relation to the non transferring employee; or

  (c) an employee organisation in relation to the non transferring employee;

in relation to that work.

768BI Effect of this Act after a consolidation order is made

  If FWA makes a consolidation order under subsection 768BG(1), then this Act has effect in relation to a particular non transferring employee, from the time the order comes into operation in relation to that employee, as if:

     (a) the copied State instrument for employee A were also the copied State instrument for that employee; and

     (b) that employee were a transferring employee in relation to that copied State instrument.

(13) Schedule 1, items 14 and 15, page 48 (line 22) to page 49 (line 2), omit the items.

(15) Schedule 1, item 24, page 50 (line 12), omit "subparagraph 768AK(1)(b)(i)", substitute "paragraph 768AK(1)(a)".

(16) Schedule 1, item 25, page 50 (line 16), omit "subparagraph 768AI(1)(b)(i)", substitute "paragraph 768AI(1)(a)".

As foreshadowed, the government proposes a number of minor amendments to the bill. It is the government's intent that, through this bill, existing transfer of business protections are provided to certain former state public servants moving into the national workplace relations system through a transfer of business scenario. These amendments are therefore designed to better and more clearly align the bill with the existing transfer of business provisions in the Fair Work Act.

The first category of amendments relates to orders that Fair Work Australia can make in relation to transfer of business—that is, amendments (1), (3) to (10), (13), (15) and (16). The government proposes these amendments to ensure that Fair Work Australia can hear applications and make orders in anticipation of there being a transfer of business. These amendments are designed to improve consistency with similar provisions in part 2-8 of the Fair Work Act. These amendments will enable new employers to enter into commercial transactions with greater certainty and to more effectively make preparations for a smooth transition at the new workplace in advance of the transfer of business occurring.

Amendments (9) and (10) will, among other things, ensure that consolidation orders and orders about employee coverage made by Fair Work Australia cannot have retrospective operation. These amendments will more closely align with similar provisions in part 2-8 of the Fair Work Act. Amendment (10) will also make it clear that Fair Work Australia can make orders relating to multiple employees rather than being required to make one order per employee. This approach is consistent with part 2-8 of the Fair Work Act.

The second category of amendments relates to the application and coverage of the bill. These are amendments (14), (17) and (18). These amendments will further clarify that the coverage of this bill extends to certain former state public sector employees only but does not extend to local government employees. These amendments reflect the intended coverage and application of the bill, as announced by the minister.

The third category of amendments, amendment (19), also clarifies the operation of the bill in relation to ensuring that the same rules that currently apply to transfers of business under the Fair Work Act in relation to the operation of the general protections provision also apply to transfers of business under the new proposed provisions in this bill. The final category of amendments deals with amendments of a minor, technical or consequential nature—that is, amendments (2), (11), (12), (20) and (21)—such as cross-references and numbering under the bill.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I simply remind the government that when it rushes legislation of this nature, without proper consultation, it is then humiliated into a position where it has to move these types of amendments in the Senate. I indicate that the coalition will not be opposing the first tranche of government amendments, nor the technical amendments, which is the second tranche. If I understand the third tranche of amendments correctly, I would be most interested as to why local government is being exempted. If this is all about workers' rights, if this is all about protecting people, why is it that an LNP redundancy is so bad but if a local government does exactly the same thing all of a sudden it is not bad? It is yet again an indication of the double standard that has been applied here.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question is that government amendments (1), (3) to (10) and (15) and (16) on sheet BW270 be agreed to.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Just on the question in relation to local government, if there are no other comments at this stage. This amendment merely clarifies the government's policy position regarding this bill. The amendment does not alter the government's policy and does not take away existing rights of local government workers. Although the bill does not extend to transfer of business from a local government employer, former local government employees who move into the national workplace relations system will have the benefit of the protections and rights and entitlements of the Fair Work Act.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

This is still not an explanation as to why a rule should apply to state governments but not to local governments. Can you explain what the difference is?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Senator Abetz, as you would be aware, explaining differences in Australia's workplace relations system across jurisdictions and across various issues does not always lead to a consistent outcome. But the government has consistently said that the purpose of this particular bill is to extend the existing transfer of business protections in the Fair Work Act to certain former state public sector employees where there is a transfer of business from their old state employer to the employer in the national workplace relations system. If Senator Abetz wishes to propose that the government deal with all employees within potential jurisdictional scope, perhaps that is something it could consider.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Rereading the brief, unfortunately, does not mean that an answer has been provided. If LNP redundancies in Queensland are so worthy of protection of rushed and hashed legislation in this place, I still cannot understand why, if the government actually believes in these things, local government employees are not being provided this so-called same protection. The coalition's position is quite clear: we believe that this is a lose-lose situation for potential employers of ex-public servants; it is also a loss for those ex-public servants made redundant because of the profligacy of the previous Queensland Labor government. But I still fail to understand why, if a local government were to go down this path, federal Labor's workplace relations justice juices are not working overtime to extend the same benefit to local government employees. So can the minister explain the moral, the practical, the financial or any difference between a state government employee who is made redundant and might be picked up by a private sector employer and a local government employee who might be picked up by a private sector employer in circumstances of being made redundant?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

Senator Abetz, what I have said on several occasions in this debate is that the Commonwealth government was responding to large-scale state government redundancies regardless of the government of a particular state. As I have mentioned, there are other states that are encompassed within these measures that do not happen to be Liberal-National Party states.

In response to the actual comparison that you suggest: as I pointed out to you earlier, there are countless comparisons across our workplace relations system that could be made. What is occurring here is a major endeavour by the government to introduce more consistency, more common standards. We do not profess that we are achieving 100 per cent consistency for all Australian workers; although, let me remind you, the Fair Work Act did make some significant advances on a uniform national workplace relations system—something that the previous Liberal government had talked about for quite some time but made very little progress on.

Talking about workers and lose-lose, again I am somewhat surprised by the audacity of Senator Abetz, given the record of the former Howard government in the lose-lose scenario. I mentioned just one example earlier about how new employees could have imposed upon them Australian workplace agreements that had no no-disadvantage test during one significant component of our history.

But I am also surprised when Senator Abetz belittles some of this debate with references to 'justice juices'. I was listening to the earlier debate about the fair entitlements guarantee, when Senator Abetz was talking about 'lollies' in reference to workers made redundant with extensive entitlements. The point here, Senator, is that in this bill we are making some major advances in improving uniformity in respect to transfer of business arrangements and we do not claim to be addressing all areas that might be relevant.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Very briefly, this suggestion that the Howard government did not make any progress on getting a national workplace relations system is quite laughable. It was the Howard government—and it pains me to say this, as a federalist—that used the corporations power to extend a national scheme which the Labor Party and the trade union movement fought all the way to the High Court and lost. Please, do not try to lecture us on that score.

Back to the bill that is before us: it is, as I said before, a bill rushed in with clearly unintended consequences. As I understand the government amendments at items 18, 34 and 35, it is intended to exempt local government from this legislation. In the government's rush to get this legislation forced through, local government was going to be included—so, clearly, something happened, between the bill's being passed in the House of Representatives and its coming to the Senate, which has required the government to move this amendment. What was the motivation? Was the government lobbied, for example, by the Australian Local Government Association? What is the driver for this amendment? Clearly, it is an unintended consequence of a rushed and very hashed piece of legislation.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

As I am advised, local government was never intended to be within the bill. It was a drafting error that has now been rectified through the processes of the parliament.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If that is the explanation, it clearly shows how rushed it was. It was never intended—it just happened to be in there; but can you then explain why it was never intended to provide these vitally important protections for workers to local government employees? You talk about a national scheme where people have the same sort of coverage and conditions. If we were to accept your mantra and rhetoric—which we do not—why should local government employees be treated as second-class Australian citizens by this legislation?

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

I have responded to that particular question on at least two occasions now. I do not intend to say anything further.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Clearly, we will not get an answer, because there is no answer. There is no justification—on workplace relations principles or workplace relations consistency, for any of the arguments that the parliamentary secretary has tried to make—as to why this bill is so important for Queensland public servants. This is so vitally important that local government has been deliberately left out. You could understand it if the government accidentally overlooked bringing local government workers into this vitally important safety net that every worker in Australia should benefit from. I hope those reading Hansard detect the irony in the wording and do not believe that what I have just said is actually coalition policy.

But we have been told by Labor that these are vitally important protections for workers. Mr Shorten even took a trip up to Queensland to bash up the Queensland Premier, who had to make some very tough decisions to overcome the economic vandalism left in the wake of the state Labor government up there.

If this is such an important, fundamental principle that needs rushed legislation in this place and if this rushed legislation actually covered local government workers—to provide them all these important protections—one wonders then why the government is deliberately moving an amendment to ensure an inconsistency, to ensure a lack of protection, to ensure that there is a second class of Australian worker in redundancy schemes. It makes no sense and it is yet again indicative of a government that has a shambolic legislative agenda, the nature of which is a direct consequence of putting politics before good, sound policy.

Question agreed to.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

The question now is that items (14) and (15) in schedule 1 stand as printed.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Are we dealing with the government—

The TEMPORARY CHAIRMAN: I am on the first set of government amendments. I am just putting the second one.

Question negatived.

The TEMPORARY CHAIRMAN (12:41): Senator Abetz, would you like to move opposition amendments?

You have predicted well, Chair, and that is why I jumped just before.

I will not spend too much time on this amendment that I move on behalf of the coalition. I seek leave to move opposition amendments (1) and (2) on sheet 7308 together.

Leave granted.

I thank the Senate and move:

(1) Schedule 1, item 1, page 4 (line 16), omit "has terminated", substitute "has been terminated (other than at the employee's initiative)".

(2) Schedule 1, page 54 (after line 31), after item 54, insert:

54A Paragraph 311(1)(a)

  Omit "has terminated", substitute "has been terminated (other than at the employee's initiative)".

The coalition has said on multiple occasions that we support a majority of the recommendations that were made by the review of the Fair Work Act, despite our misgivings about the reviewers themselves and the terms of reference. One example is that one of the reviewers railed against the coalition's use of the corporations power for workplace relations purposes yet, when Labor did exactly the same thing with its Fair Work legislation, he was strangely silent, unable to find anything wrong with the use of the corporations power. Once again it was one of these very transparent exercises of 'Liberal bad, Labor good'. It is one of the indications of the hand-picked, cherry-picked panel. Nevertheless, this hand-picked panel with skewed terms of reference—and a cost of $1 million to the Australian taxpayer—did make its findings. This is what they found:

Yet it does appear to the Panel that when employees voluntarily seek to transfer from one associated entity to another, they should be employed under the terms and conditions to which they would be subject as an employee of the 'new employer'. Of course, as has been shown above, in these instances the parties can apply to FWA under s. 318 for an order that the existing terms and conditions of employment of the transferring employee will not govern her or his employment with the new employer.

The question for the Panel is whether it is necessary to require the parties to apply to FWA on every occasion an employee voluntarily seeks to transfer to a similar position in a related entity. We believe it would be preferable to spare both parties the time and expense of making such an application. This could be achieved by amending s. 311(6). Such an amendment is unlikely to increase the risks of employees having their terms and conditions of employment diminished through transfers to associated entities.

Indeed, the panel went as far as to recommend that section 311 of the Fair Work Act be amended to make it clear that when employees, on their own initiative, seek to transfer to a related entity of their current employer they will be subject to the terms and conditions of employment provided by the new employer.

So I am pleased to move this amendment that would actually implement a recommendation of the government's own Fair Work Act review both within the confines of this bill and also those of the Fair Work Act. This would mean that employees who leave an employer of their own accord and then move across to a new business, where a transfer occurs, would not be entitled to move across their existing terms and conditions.

It is important to note that this amendment would still cover those employees who are forced—and I stress this, forced—to move across to a new employer to keep their jobs by the transfer of business provisions. This is something that the coalition supports, and I note that it is a principle that has been enshrined in industrial legislation for a long time. As a result, I commend the amendment to the Senate.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

These proposed amendments purport to exclude employees who resign from their employment with the old employer both from new part 6-3A and part 2-8. The government does not support the amendments.

The effect of the amendments would be to exclude from the transfer of business framework all employees who resign from the old employer at their own initiative. We have been crystal clear in respect of the intended operation of this legislation: we would provide as close as possible protections to those currently provided in the Fair Work Act. The opposition has clearly said that they will not support the bill and that they will not support the bill even if this amendment is passed.

The opposition argues that their amendments reflect recommendations in the Fair Work Act review panel report, but these amendments go beyond what was recommended by the independent panel which reviewed the Fair Work Act. The panel proposed amendments in respect of employees choosing to transfer between associated entities—for example, a corporate group. This amendment, however, would see employees excluded from protections in all transfers where an employee has resigned of their own initiative. It is another example of the opposition seeing an opportunity to reduce workers' protections and grabbing it with both hands.

The government has said that it will continue to work through the recommendations arising from the independent review of the Fair Work Act, including the one recommendation the panel has made with respect to transfer of business. We have said that nothing has been ruled in and that nothing has been ruled out, and we will continue to work in a constructive and consultative way.

Eric Abetz (Tasmania, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

By voting against this amendment, the government is clearly rejecting the panel's recommendation. There is no doubt about that; the government cannot have it both ways and say that they reject this proposal but yet have an open mind in relation to the review panel. The suggestion that we would seek to provide diminished protection for workers in relation to this amendment is another example of the sort of rhetoric that we got from one of the Labor senators during the second reading speeches about the coalition 'waging a war'—I think that was the term—or 'war being waged against workers'.

It is the sort of inflammatory rhetoric that you might have learnt 100 years ago at trade union training school that really does not have much persuasive capacity in the 21st century, especially when you know that the good professor and the good doctor who were part of this hand-picked panel—and I quote this again, and it is a direct quote:

The question for the Panel is whether it is necessary to require the parties to apply to FWA on every occasion an employee voluntarily seeks to transfer to a similar position in a related entity. We believe it would be preferable to spare both parties the time and expense of making such an application.

That is all that we are seeking to do: implement a very sensible, minor, technical and moderate recommendation of the review panel, and Mr Shorten and Ms Gillard simply cannot bring themselves even to acknowledge that this might be a good idea in circumstances where they are actually visiting the issue of transfer of business.

If we were in a position where the government had said, 'We have parked the issue of transfer of business to the side, we are still consulting and we are considering what we ought to do in this space,' I could accept that and we would not be moving this amendment. But the government has deliberately chosen, by this bill, to put transfer of business fair and square onto the legislative agenda. We then invite the government to accept one of the panel's very modest recommendations, and the government cannot even bring itself to accept it.

What it indicates yet again is that clearly certain trade union bosses have ensured that the government cannot move forward on a very simple, very straightforward amendment that Labor's own hand-picked panel, with skewed terms of reference, came to. The panel were mugged by the reality of the situation. They saw the red tape. They saw the consequences. They saw the disincentive. They saw that it was not good for workers. They saw that it was not good for employers. The arguments are there, made out so exceptionally cogently on pages 205 and 206 of the review panel's report, and the government cannot bring itself to support such a, quite frankly, nondescript amendment. It is yet another indication that this bill has been all about politics and not about genuine policy.

Jacinta Collins (Victoria, Australian Labor Party, Parliamentary Secretary for School Education and Workplace Relations) Share this | Link to this | Hansard source

by leave—I move government amendments (2), (11), (12), (14) and (17) to (21) on sheet BW270 together:

(2) Schedule 1, item 1, page 5 (line 22), omit "paragraphs 768AD(1)(a), (b) and (c)", substitute "paragraph 768AD(1)(a)".

(11) Schedule 1, item 1, page 43 (table item 3, column 1), after "item 13", insert "(other than note 1 and note 2)".

(12) Schedule 1, item 3, page 47 (lines 10 to 12), omit the item, substitute:

3 Section 9A

Repeal the section, substitute:

9A Application, transitional and saving provisions for amendments (Schedules)

  The Schedules contain application, transitional and saving provisions relating to amendments of this Act.

     Note: Application, transitional and saving provisions relating to the enactment of this Act, and States becoming referring States, are in the Transitional Act.

(14) Schedule 1, page 49 (after line 14), after item 18, insert:

18A Section 12

Insert:

  local government employee has the same meaning as in subsection 30K(1).

18B Section 12

Insert:

  local government employer has the same meaning as in subsection 30K(1).

(17) Schedule 1, item 34, page 51 (line 24), after "law enforcement officer of the State", insert "but does not include a local government employee of the State".

(18) Schedule 1, item 35, page 52 (lines 14 and 15), omit "law enforcement officers of the State", substitute "a law enforcement officer of the State but does not include a local government employer of the State".

(19) Schedule 1, page 54 (after line 31), after item 54, insert:

54A Subsection 341(5)

Omit "Part 2 8 (which deals", substitute "Part 2 8 or 6 3A (which deal".

(20) Schedule 1, page 56 (after line 8), after item 62, insert:

62A Section 795A

Repeal the section, substitute:

795A The Schedules

  The Schedules have effect.

     Note: The Schedules contain application, transitional and saving provisions relating to amendments of this Act.

(21) Schedule 1, item 67, page 56 (line 22) to page 57 (line 16), omit the item, substitute:

67 After Schedule 1

Insert:

Schedule 2—Amendments made by the Fair Work Amendment (Transfer of Business) Act 2012

  Note: See section 795A.

1 Definitions

  In this Schedule:

  amending Act means the Fair Work Amendment (Transfer of Business) Act 2012.

  commencement means the commencement of this Schedule.

2 Application of the amendments made by the amending Act

  The amendments made by the amending Act apply in relation to a transfer of business referred to in Part 6 3A (as inserted by item 1 of Schedule 1 to the amending Act), but only if the connection between the old State employer and the new employer referred to in paragraph 768AD(1)(d) (as inserted by that item) occurs on or after commencement.

Question agreed to.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.