Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The committee is considering the Fair Work Amendment Bill 2012.

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

This is the continuation of the committee stage of the Fair Work Amendment Bill, and last night I was asking whether the government could provide us with an estimate of the costs associated with the proposed name change. The Senate committee inquiring into this was told a week ago the question would be taken on notice. We were told last night the question would be taken on notice, and I am wondering if the government now might actually have a defined figure to provide to us, rather than the rubbery explanation we have continually been provided.

Further, I asked the parliamentary secretary if the appointment of two new vice-presidents is going to cost Fair Work Australia $1.5 million or thereabouts per annum; if the name change is going to incur a cost; and, if all those costs are going to be absorbed by Fair Work Australia, what areas of Fair Work Australia's current activities will be curtailed for the extravagance of appointing these two new positions and for the this non-name change?

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

I can apprise Senator Abetz that since 10 o'clock last night there has been no change in the advice government has from Fair Work Australia with respect to their internal processes that I described during the committee stage last night, looking at the detail of the cost involved to change the name. So I cannot advise him further on any defined figure; only the information I gave him last night about the process under which Fair Work Australia is determining such matter. As Senator Abetz full knows, Fair Work Australia are an independent statutory body. They will go through their process and, at such time as we have advice for the Senator, we will inform him.

I will clarify also a component of the advice I gave last night: the absorption of the cost for the name change was the information I gave; it did not pertain to the issues around the appointment.

Senator Abetz is also asking with respect to what areas of current activities might be curtailed. Again, that is a matter for Fair Work Australia. I will seek to ascertain whether there is further advice on that matter.

I am also in the hands of the Senate as to whether, at this point in time, we want to move to the matters that Senator Cormann raised last night or whether Senator Abetz would like to remain on the areas that, prior to that, he was canvassing yesterday.

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

The last point of the parliamentary secretary is a fair question. I do not know how many other senators have general questions, though I still have a few. After that I would suggest we start moving through the amendments formally. I would then, according to the sheet, move the vice-presidential amendments and then Senator Cormann will come back into the chamber and canvass opposition amendments to superannuation. Given Senator Cormann's absence at the moment, if the parliamentary secretary could oblige by responding when Senator Cormann returns to the chamber I think that would be the most beneficial for both the parliamentary secretary and, if I might say so, especially for the opposition.

In relation to the issues I raised, I do note the parliamentary secretary's comment that the position has not changed since 10 o'clock last night. But the regrettable thing is that the position has not changed since the matter was before the Senate committee a week ago. The government makes money available to Fair Work Australia to undertake all sorts of issues and activities. We have been told in recent times now that Fair Work Australia from its budget will simply absorb the costs of a new registered organisations regime with new forensic accountants, new forensic lawyers, beefed up—all to be absorbed by Fair Work Australia without an extra allocation of money. We are similarly told that Fair Work Australia is simply going to appoint two new vice-presidents at a cost of at least $1.5 million per annum, simply to be absorbed. Fair Work Australia is now going to have a name change and the cost of that simply to be absorbed.

How much more is the government going to demand from Fair Work Australia and why was Fair Work Australia given such a big budget if it can afford all these extra changes without any curtailment of its existing activities? Clearly something must be giving within the Fair Work regime for all these extra financial burdens to be placed upon it without any extra money being made available. The Australian people are entitled to an answer, and to simply hide behind the fact that it is an independent statutory authority is not good enough because it is the government that makes the money available. This independent statutory authority operates under legislation that this government introduced, and the people of Australia are entitled to know where the money is coming from and what areas of Fair Work Australia's activities will be curtailed to fund all these new activities without supplementation to Fair Work Australia's budget.

The CHAIRMAN: Senator Collins, do you want me to seek from the Greens an answer to your question about the general questions, whether the Greens have an indication as to whether they have many questions in this segment or they are happy to move through the amendments? Senator Wright.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

The Greens do not have any further questions in relation to the general issues. We are happy to move through the amendments.

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

With respect to Senator Cormann's questions, I am happy to defer them even if it is necessary to do so during the discussion of the amendments themselves. So if it suits Senator Cormann to simply come and move his amendments I am happy to deal with the issues that he raised last night at that stage.

With respect to the issues that Senator Abetz raised, I described last night that Fair Work Australia has a process to work through to determine the costs involved with the change of name. It is not that there is no understanding of cost but rather that Fair Work Australia have advised government of their process and we are waiting for an outcome of that process. We are quite happy to inform the Senate and indeed Senator Abetz of the outcome of that process once it becomes known.

I can clarify further the point I made in response last night to a question on the name change. I indicated that the costs were to be absorbed by Fair Work Australia. I differentiated just a moment ago between that and the costs associated with the new appointments.

However, no differentiation is warranted: it is indeed the case that Fair Work Australia will absorb the full cost involved in the changes that have been sought. However, the precise details—and I think I mentioned this last night—in relation to the costs associated with the new appointments are still subject to the Remuneration Tribunal.

But we can be quite clear that the government is confident that Fair Work Australia will continue to fulfil its functions under the Fair Work Act diligently and well. Senator Abetz would be aware that over time, since the establishment of Fair Work Australia, there have been differential arrangements in relation to the costs of the agency, some of those associated with dealing with the new act and the new arrangements that were first implemented and with changes that have occurred subsequently. What the government has done on this occasion is respond to requests from Fair Work Australia to set up new administrative arrangements. We rely on Fair Work Australia to advise us on what administrative arrangements it needs, and any further costs that may need to be considered would be a matter of the usual budgetary arrangements. We are confident that Fair Work Australia will absorb the cost in relation to these measures that they have sought, without any loss of function in other areas.

On the cost of the vice-presidents, I have already mentioned this is a matter for the Remuneration Tribunal and any costs beyond those that have been estimated in a broad sense would be subject to normal budgetary processes.

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

So what we have is a situation where we do not actually know the cost of these two new appointments; the cost is going to be subject to whatever the Remuneration Tribunal might determine. But, irrespective of what the cost is, the government is saying it will be absorbed by Fair Work Australia. We do not know what the cost of the name change is going to be, but it is going to be sorted out by Fair Work Australia simply absorbing the costs.

We cannot be told where the money is going to come from within Fair Work Australia because Fair Work Australia is still working through it. What that tells us clearly is that this has been rushed. Fair Work Australia itself still has no idea where the money is going to come from within its internal budgets. This is indicative, yet again, of the shambolic and rushed nature of this legislation, because Fair Work Australia itself has not been given the time to work out where the money is going to come from. The parliamentary secretary has been kind to tell the Senate that, when the process is known and the outcome of the process is known, she is willing to tell the Senate. But what we know is that we will not know the answer before the vote. So here we have the parliamentary secretary, and I am sure the Greens will oblige her, asking the parliament to vote for legislation when we do not know where the money is coming from and how the arrangements are going to be made internally.

It is this sort of shambolic management—just a snapshot—of Fair Work Australia which provides us with a window into the total management of the Australian economy by this government. They have no idea where the money is coming from and they make changes with no idea how much it is going to cost. We are still waiting on Fair Work Australia, we are still waiting on the Remuneration Tribunal—and so the uncertainty goes on. But we need to vote on this today, irrespective of what the actual outcome or consequences might be!

I am a relatively hopeful individual, and a person who has a positive outlook, but I must say I doubt that the Senate is going to get any further answers in relation to these matters, so allow me to move on and test the parliamentary secretary. Every piece of workplace relations legislation that this government has introduced thus far has been rushed through the House of Representatives only to find itself in an embarrassing position in this place requiring further amendments. Can the parliamentary secretary guarantee us that the government is absolutely and utterly confident that this legislation does not need any further government amendments?

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

Perhaps I will close off on the last set of questions from Senator Abetz by making the point that Fair Work Australia has sought to make administrative changes for quite sensible reasons, and the government has responded to those requests.

Fair Work Australia understand that they need to absorb the costs of those arrangements and, other than the issues that the opposition is now raising, I am not aware of any concerns about them needing to do so. Senator Abetz may want to wait until the next round of estimates and explore this issue further, but there has been no evidence before me that there is an issue for Fair Work Australia in absorbing the costs associated with the changes that they themselves have sought.

With respect to every piece of workplace relations legislation, Senator Abetz wants to test me within the recent period of workplace relations. He knows as well as I do that workplace relations law is a constantly evolving issue. I think back to the various waves of workplace relations law, and were I to ask a similar question during a period of the Howard government it would possibly have had a response which was even more so. But I take the Senate back to the context of my summing-up speech, where I indicated and, indeed, Senator Cash highlighted—and I think that even Senator Abetz has used this language too, but I might be wrong there—that this is the first tranche of amendments, the matters that are generally agreed in response to the review of the Fair Work panel.

The first tranche are those matters which we think have general agreement and which can be moved forward fairly speedily. That said, the government has indicated that we have an open mind to further amendments that may be required in response to the other recommendations of the review panel. Some of those recommendations may cross some of the amendments that we are dealing with here so, no, Senator Abetz, I would not be in a position to say that there will not be a requirement for further amendments in the matters that we are dealing with now.

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

Of course, it is very obvious that Fair Work Australia accepts that it has to absorb the costs. What else can it do? What else can it do in the face of the government changing legislation and foisting these things on Fair Work Australia without giving it extra money? The parliamentary secretary says, 'Oh, they realise that they have to absorb it.' Everybody knows that they have to absorb it, but that is not, with respect, a justification for what has occurred, especially in circumstances where we do not know where those cost-cutting measures will occur within Fair Work Australia. I have a funny feeling that those cuts may well occur in the area of monitoring registered organisations, and that in the event that we have another Craig Thomson-Health Services Union debacle we will once again see Fair Work Australia underresourced and incapable of dealing with the issues as it should have done. But let us move on.

I seek leave of the Senate to move opposition amendments (2), (3) and (5) on sheet 7305 together and opposition amendments (6) and (14) on sheet 7305.

Leave granted.

I move:

(2) Schedule 2, item 43, page 22 (line 10), omit "Vice President or".

(3) Schedule 8, item 1, page 43 (line 7), omit paragraph 606(2)(c).

(5) Schedule 8, item 16, page 49 (line 7), omit "a Vice President,".

The opposition also opposes schedules 8 and 11 in the following terms:

(6) Schedule 8, items 17 to 56, page 49 (line 9) to page 53 (line 16), TO BE OPPOSED.

(14) Schedule 11, item 21, page 184 (lines 13 to 16), TO BE OPPOSED.

I thank the Senate. This raft of opposition amendments deals with the creation of two new vice-presidential positions on the body known as Fair Work Australia. These two new positions were not canvassed in the Fair Work Act review panel's report. In the 250 submissions made to the review there was no such suggestion. As a result, not surprisingly, the review panel saw no need to make such a recommendation.

It is therefore appropriate to ask from whence did this recommendation come. We now know that this recommendation came as a result of one ex-trade union boss talking to another ex-trade union boss—the former Assistant Secretary of the ACTU, who just happens to be the president of Fair Work Australia, talking to Mr Shorten, the former AWU boss, who now happens to be the Minister for Employment and Workplace Relations—and it was determined that it would be a good idea to have these two new vice-presidential positions.

This is a very important issue. The reason it is important has been highlighted by no lesser authority than the Law Council of Australia. The Law Council of Australia have set out, in a very articulate manner, a very well-reasoned manner and a very robust manner, how these two new appointments will be a diminution of judicial independence within Australia. It is a bad precedent, and they have said so. The government's response is like Ms Gillard's response in relation to the AWU scandal—basically a lot of words without any meaning and without any proper defence of the matters put to them.

This bill creates two additional vice-presidential positions and they will be the second and third highest positions within Fair Work Australia. The minister has completely failed to explain why these positions are required, let alone justified, apart from the department's submission that the president of Fair Work Australia—a former assistant ACTU secretary—sought the additional roles. These two positions would slot in as the second and third most senior officers of the tribunal.

Since the announcement of these two additional positions, there has been widespread community concern, including from within Fair Work Australia itself. Clearly, with this new appointment in Fair Work Australia of a new president, there is a power struggle occurring within Fair Work Australia. And what better way for the government to get complete domination than simply creating two new positions and appointing two new people into them? The Australian Financial Review recently reported:

In an email obtained by the Weekend Financial Review, Senior deputy president Les Kaufman wrote to Fair Work president Iain Ross on Wednesday questioning the need for two positions, which reintroduces a level of seniority at the tribunal that was removed under the Fair Work Act in 2009.

Mr Kaufman, the senior deputy president, said the appointments would 'further erode the standing' of the tribunal and 'gives rise to the perception it is being stacked'. It is no longer a perception that it is being stacked; it is absolutely proven that it has been stacked. But allow me to continue to quote. The article went on to report that senior deputy president Les Kaufman said in his letter:

Although I have no direct interest in the creation of the two new vice-president positions because, as you know my commission expires on December 1—

so only a few more days to go, and nothing in it for this senior deputy president, Mr Kaufman; he is just expressing his concern. He goes on to say:

… I wish to express my dismay at what appears to be a retrograde step.

You might think senior vice-president Les Kaufman was having a whack on the way out and might be a lone voice, but it is not so. The article goes on to say:

Deputy presidents Graeme Watson and Peter Richards have also written to Justice Ross over concerns the federal government will use the opportunity to install government-friendly appointees.

Here we have a senior deputy president and two deputy presidents writing to the president of Fair Work Australia and disagreeing with his suggestion—which he seems to have cobbled together with the minister—to create these two new positions.

Many submissions to the Senate committee in relation to this expressed deep reservations about the inclusion of these two positions. Some of the comments included:

From our perspective the need for the creation of these additional positions and the requirement that they be statutory positions is unclear. Neither the Fair Work Act Review Panel nor submissions to the review have identified the absence of these statutory positions as inhibiting the performance of Fair Work Australia.

Possibly, we might get an explanation from the government as to how the lack of these positions is inhibiting the performance of Fair Work Australia. Clearly, three deputy presidents of Fair Work Australia do not think it is. They have very real concerns and, of course, we know about the Law Council's concerns. Another submission said:

This was not recommended by the Panel. It is unclear why these amendments are necessary or required and are opposed without amendments.

Another comment from the submission reads:

It is unclear why the existing Vice Presidents would not be suitable for re-appointment to the new statutory Vice Presidential roles.

To this end, there was wide stakeholder support for the appointment of the two members of Fair Work Australia to the new positions titled as vice-president. Steve Knott of AMMA told the committee :'The legislation previously recognised the two existing vice presidents, Vice President Lawler and Vice President Watson, but the current legislation does not.' Clearly what we have, with the move to the Fair Work Act, is the government deliberately cutting these two people out of vice-presidential positions to move them to the side. The government is now moving to create two new positions and, as a result, is sidelining these two vice-presidential office holders of Fair Work Australia.

The proposal to have the legislation recognise these two roles once again, and put two new people into them, is unacceptable. It is real pea-and-thimble trick. For those with long memories in industrial relations, we will go back to the eighties when there was new legislation and everybody got appointed except one member of the tribunal—a fellow by the name of Justice Staples. I think this gives the opportunity—and again, we have commented on this publicly—to really damage the independence, or the perceived independence and impartiality, of the tribunal. We have senior appointments made to the tribunal through the political cycle. There are people who are appointed by one side who may not be appointed by another side, but that is the way it goes over the fullness of time in the political cycle.

The coalition is deeply concerned that the appointment of pro-Labor vice-presidents would bring into question the tribunal's integrity, which has already suffered considerable damage courtesy of the Health Services Union scandal. But, if I may say so, the most significant submission comes from the Law Council of Australia, which said in part:

Members of FWA are appointed to a quasi-judicial position. The status of FWA depends upon the independence and impartiality of its Members being maintained and being seen to be maintained.

As a general principle, once a person has been appointed to sit on a Court or independent Tribunal with designated powers and privileges, any change that would have the effect of removing or reducing that particular person’s powers or privileges while not affecting the powers and privileges of other Members of that Tribunal, has a tendency to undermine the independence of the Court or Tribunal.

…   …   …

Should the Government appoint the two individuals currently designated Vice President to the two statutory Vice President positions, then their status will not be reduced. However, if the two Deputy Presidents designated Vice Presidents are not so appointed, the effect of the Bill will be to reduce their status. Henceforth responsibilities that would have been capable of being delegated or given to them by nature of their senior status would instead be given to the new statutory Vice Presidents.

This would have the tendency to reduce the independence of the Tribunal in that it will reduce the role and privileges associated with particular individuals.

So says the Law Council of Australia.

The government's argument in response to that to date has been shallow, has been hollow and has been completely absent of any rationale, any robust rejoinder. The only rationale is that this is a government that thinks it might be in its death throes and wants to future-proof Fair Work Australia from any future appointments by another government and therefore has rushed through this legislation, created two new positions and further stacked Fair Work Australia.

I remind the parliamentary secretary of Mr Rudd's promise before the 2007 election:

I give you this as an absolute guarantee here on your program. I will not be prime minister of this country and appoint some endless tribe of trade union officials to staff or ex trade union officials to staff the key positions in this body. That's not my intention. That's not the way in which it's going to work.

Well, we now know that that is exactly the way it has worked under both the Rudd and Gillard governments. It is like their carbon tax promise: hollow, shallow, with no intention of delivering on it—simply words before the election to get them over the line and then do the exact opposite afterwards.

I ask of the parliamentary secretary: what are the entitlements of the two new vice-presidents? We do not know that as yet, I understand, because the Remuneration Tribunal still has to make the determination. This is very unhelpful in circumstances where we are supposed to vote on this without knowing what their entitlements will be. The Greens might like being treated as mushrooms, but we, the coalition, do not.

The other answer that I have is about the current people on Fair Work Australia who have judges pension entitlements. If they apply for one of these two new positions on Fair Work Australia, would they lose their judicial pension entitlements? It is understood that the new appointments will not have these judicial pension entitlements so, apart from their remuneration, there is also the question of what their pension entitlements might be.

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

I might commence by dealing in general with the government's response to these opposition amendments and then I will move to answer the questions that Senator Abetz asked at the conclusion, as well as perhaps addressing a few of the other observations he made in that process which do not stand up to any serious scrutiny. I know that Senator Abetz thinks that he has got case closed on balance and appointments to this tribunal but I would suggest that he is making quite a few cheap political points that would not stand up to any serious scrutiny.

The government does not support the opposition's proposed amendments. The two new vice-president roles to be created within the tribunal were recommended by the President of Fair Work Australia, Justice Ross. In establishing Fair Work Australia, the government took the decision to abolish the formal statutory positions of vice-president and senior vice-president, as Senator Abetz has indicated. Vice-presidents and senior deputy vice-presidents became deputy presidents within the Fair Work Australia structure. Let us remove that illusion around the seniority issue that Senator Abetz has raised.

In the transition arrangements in moving from the Australian Industrial Relations Commission to Fair Work Australia former senior deputy presidents and vice-presidents were entitled to retain their former entitlements and titles. Indeed, this gives me the opportunity to reflect on Senator Abetz's visit to the 1980s around appointments and remind those listening and the Senate that in the transition from the Australian Industrial Relations Commission to Fair Work Australia all positions were maintained—complete balance, complete reflection of the existing arrangements. Those arrangements had principally been established under the Howard government with a track record I do not intend spending some detail visiting; I think it is pretty much a matter of record.

Justice Ross recommended to the government providing for two senior positions within the tribunal to ensure senior legal specialists with high-level expertise were attracted to Fair Work Australia, and, I stress, to assist him in the administration and management of the tribunal. Senator Abetz likes to highlight some of the issues facing Fair Work Australia. He likes to highlight the need for independence and the need for administrative and management improvements. This is indeed the solution that Justice Ross has raised in relation to some of those issues. So it surprises me now that the opposition seek to oppose the president of Fair Work Australia in dealing with some of the internal management issues that the opposition themselves have canvassed.

Fair Work Australia deals with important and complex matters of industrial law and should be resourced accordingly. In addition to matters of industrial law, Fair Work is undertaking a broad range of functions, including the new Road Safety Remuneration Tribunal jurisdiction, a major projects panel and a new comprehensive stakeholder engagement model. Creating these positions will assist Fair Work Australia to deal with such matters. The criteria for appointment as vice-presidents will be set out in the Fair Work Act and are reflected in the bill. This reflects the approach taken in respect of other members of Fair Work Australia and previous iterations of legislation.

The process for selecting the two new vice-presidents will be open and transparent. The government has committed to a merit-based selection process for these appointments. The positions will be advertised publicly and anyone will be able to apply for the positions. An advisory panel consisting of senior officers of the Department of Education, Employment and Workplace Relations and the APSC will recommend a short list of applicants and the incumbent minister will then seek cabinet's endorsement of the appointments, as is the usual practice. The endorsed candidates will then be recommended to the Governor-General and to the Executive Council.

I dealt with Senator Abetz's brief visit to the 1980s on the issue of appointments and highlighted probably the most recent principal example of how the Prime Minister has met the commitment she made in relation to balance within Fair Work Australia, to be the Fair Work Commission. But I think I need to address in a little more detail Senator Abetz's claim that there is a perception that Fair Work Australia is, in his words, being stacked. Whilst he relates to some internal memos or communications from some existing commissioners, the public record on recent appointments highlights that there is a general satisfaction with the balance that has been established within Fair Work Australia. I have in front of me three press releases. The first one relates to ACCI: 'Employers welcome Fair Work appointments'. Another is dated February this year: 'Employers commend Shorten on Geoff Bull's appointment to Fair Work Australia'. A further newspaper article in the Australian in February this year: 'All sides approve of Fair Work appointees'. So I do not think that the case is quite as established as Senator Abetz seems to think it is. I do add some further context, since Senator Abetz referred to the Prime Minister's remarks. She referred to ministerial advisers. If I a recall correctly, there was a chief of staff of Minister Reith who was appointed to the Australian Industrial Relations Commission as registrar.

The government has gone nowhere near the excesses of the Howard government in the balance that it has introduced into Fair Work Australia and the Fair Work system. We have maintained appointments that were made under the Howard government. The appointments made to the Fair Work Ombudsman and the commission have been balanced and fair.

The ongoing problem that I might highlight to Senator Abetz—as a challenge more than anything else—is finding high-calibre women candidates to appoint, particularly on the employer side. He might like to assist the minister and me in encouraging more candidates to seek appointment to the tribunal. This is a challenge that we have raised with employer organisations, and we hope that over time there will be some improvements in that respect.

Senator Abetz asked and then answered his own question on entitlements, and we will be waiting for the Remuneration Tribunal to establish some detail there, but he did seek an assurance on judges' pension entitlements with respect to existing office holders, and I am advised that if existing office holders who carry such entitlements are appointed to the positions the government will, through regulation, ensure that those arrangements are preserved.

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

So when did the government decide to make sure that those things would be preserved by regulation? Undoubtedly, that is something that should have been in the legislation itself, but it will seek to cover a deficiency via regulation. Just in case anybody who is listening thought that there was a substantial argument made out by the parliamentary secretary that that which I had asserted does not stand up to scrutiny about the stacking of Fair Work Australia, let me just ask them—in particular the parliamentary secretary—that, out of the 17 appointments made thus far, who can tell us how many were ex-trade-union bosses, given the promise that it would not be an endless tribe of ex-trade-union officials? Would you think one or two, possibly? Three or four? Five or six? All right, let's go halfway at eight out of the 17. Nah—you got it wrong; it is 12 out of the 17—over two-thirds. But that is not an endless tribe of ex-trade-union officials according to the parliamentary secretary. Heaven help us if two-thirds plus is not an endless tribe. What it means is that a 100 per cent stacking and packing of Fair Work Australia also would not be an endless tribe to Fair Work Australia appointments.

Need I remind the parliamentary secretary of the appointment of the very first manager of Fair Work Australia—an ex-trade-union official. What was that person's role? The oversight of the Health Services Union inquiry and the inquiry into Craig Thomson. And just when the heat was getting on, just when we as a coalition were seeking to have questions asked of him at a Senate estimates hearing, what does the government do? It miraculously appoints him to the commission of Fair Work Australia to put him out of reach of senators' questions as to the absolutely disgraceful handling of the Craig Thomson and the Health Services Union matter. So this manager, who oversaw this absolute disregard for process and this disgraceful delay in the Craig Thomson-Health Services Union matter, is not chided but rewarded by this government and elevated to the bench of Fair Work Australia. If that is not enough, there is a vacancy created in the managerial role of Fair Work Australia. I wonder what sort of person we might appoint to that vacancy. Guess what! Another ex-trade-union official. But it is not an endless tribe, you understand; it is not an endless tribe of ex-trade-union officials being appointed!

Well, chances are that I misinterpreted what Mr Rudd meant when he said there would not be an endless tribe of ex-trade union officials being appointed. I actually took him at face value. Clearly, I was wrong, as the Australian people were wrong in relation to the no carbon tax promise made at the last election.

We have been told that these appointments are open, transparent and merit based, as undoubtedly was the appointment of that greatly successful manager of Fair Work Australia who oversaw the Health Services Union debacle—open and merit based. What a fantastic job! They did a great job looking into the Craig Thomson Health Services Union for—how many years was it?—three years or whatever it was. Great! And merit demanded that this sort of performance saw this person put onto the bench of Fair Work Australia.

What about the trade union official who was in diabolical trouble with his own trade union, the Electrical Trades Union, which was suing him, if I recall, for about $1 million? They were wanting back pay for the moneys he had received while sitting on one of those industry super funds as a board member, milking out money. There will be more talk about the industry super funds and the default funds under the modern award system later on today. But guess what happened to this person? The day before his announcement to Fair Work Australia was made public—it was just serendipitous; it was just coincidental—the case with the union miraculously settled. Oh please! Merit based? Open? Transparent? I could go on with a list. I think the government knows it cannot claim honesty in relation to that assertion.

Coming back to the issue that Justice Ross says is required, namely, a 'high level of expertise', I think the term was, I am sorry but, with great respect, is the government asserting that that high level of expertise does not currently exist on the bench of Fair Work Australia? I can tell you, there are many people who would clearly fit into that category who would be, I am sure, more than willing to assist the president if he were willing to use their expertise, their experience and their reputation to assist him in the management and running of Fair Work Australia. I say to the government again that no genuine argument has been made out for this enhanced stacking and packing measure of Fair Work Australia.

I finally make a comment in relation to female appointments. It is amazing. The second-last time around, when I pursued the so-called merit based appointments to Fair Work Australia, it was astounding how the selection process showed a complete dearth of quality private sector people worthy of the short list. But, oh, the ex-trade union officials made the short list. They were in there, right through. They made the short list as high-quality individuals. All I would ask you to do, Parliamentary Secretary, if you do want to look for female candidates for appointment to workplace relations tribunals, is look no further than the new LNP government in Queensland, which have appointed for their industrial commission a very distinguished lady, Minna Knight. But people like that, I am sure, simply would not make the short list or would—

Senator Jacinta Collins interjecting—

I am not going to indicate whether or not, because there are privacy considerations involved.

But it is interesting that, when you have an LNP government elected, all of a sudden it finds meritorious female candidates to appoint to its industrial tribunals, yet this government, with all its quotas and other things, seems to have great difficulty.

I will leave my contribution to this amendment at that. I commend the amendment to the Senate. I believe it is worthy. I simply say to the Greens: even if you want to discount every single word I have said in this debate, as is usually your wont, please do so—please be my guest—but you cannot discount—

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Yes.

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

Senator Polley smiles and says, 'Yes.' But, even if you discard every single word I have said, how on earth do you discard the words of three deputy presidents of Fair Work Australia and how do you discard the very wise counsel of the Law Council of Australia? The parliamentary secretary and the government can play politics with my words, but they cannot play politics with the considered views of three deputy presidents of Fair Work Australia or the Law Council of Australia. That is what makes the coalition so confident that it is right on the fundamental matter of principle that these amendments should be carried—namely, that these two new positions should not be established. Given that the government cannot respond in any coherent way to reject the views of these three deputy presidents and the Law Council of Australia, we can be left with no other conclusion than that this is a deliberate attempt to stack and pack Fair Work Australia, as the government feels it might be in the death throes.

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

Unfortunately, I have been provoked to traverse some territory I was hoping not to occupy Senate time with, but I think the responses of my colleagues and others to at least three references of 'stacking and packing' warrant some consideration. Those listening and other senators need to understand that Senator Abetz's view about what constitutes a union official is a particularly interesting one. Anyone who has ever, at any stage of their professional career, been associated with a trade union would fit his category. So just imagine, across the Australian workforce, people across a broad range of professions and experience—for instance, mine, professional social work. Because I was involved with a union—because I joined a union at the age of about 16—I would fit his category. It is just ludicrous. He counts, for instance, Justice Ross as one of these 'stacks'. He may not particularly like that particular appointment, but it is not really a fair characterisation of the balance and composition of Fair Work Australia, and I do not think that Senator Abetz does the tribunal justice with this approach.

In relation to the Law Council's submission, we need to remind the chamber that what the government is doing is re-establishing an arrangement of seniority that had been in place for many years. The Law Council is concerned about relative positions of some of the existing office holders. Unfortunately, change involves affecting relative positions of existing office holders. That is a necessary consequence of change.

The other three considered views that Senator Abetz highlights relate, if I have got this correct, to at least one and perhaps three leaked emails, possibly taken out of context. I am not sure about how those deputy presidents feel about the opposition bandying around leaked emails, or what their motives may or may not have been in commenting, or how that material came into the public realm. It may have been reported by the Australian Financial Review, but I remind senators and those listening that that is the context of the reporting of those views, not necessarily in their full context. These were private communications between them and the President of Fair Work Australia and certainly cannot be taken as representative of the view of Fair Work Australia commissioners and deputy presidents.

What we do know, as a matter of fact, is that the President of Fair Work Australia sought to have the government re-establish seniority arrangements that had previously been in place to assist him in the administration and management of an agency which we all know has reviewed its internal processes so that it can deal with some of the issues and problems associated, as Senator Abetz highlighted, with resourcing and work in certain areas.

This is what the government is doing to try to assist Fair Work Australia overcome some of the difficulties that have arisen in recent times.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that opposition amendments (2), (3) and (5) on sheet 7305 be agreed to.

Stephen Parry (Tasmania, Liberal Party) Share this | Link to this | Hansard source

I will now put the second part of the opposition amendments. The question is that items 17 to 56 in schedule 8 and item 21 in schedule 11 stand as printed.

Question agreed to.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Before I move the opposition's next amendments, I advise that I placed on record a series of concise questions last night, and I would be interested in the government's answers.

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

For Senator Cormann's benefit, as he may not have been listening at the stage when Senator Abetz and I discussed how to deal with the issues that he raised last night, I advise that we agreed—I think as a courtesy to Senator Cormann—to delay responding to Senator Cormann's questions until Senator Cormann was in the chamber. So I am happy to cover those issues now.

As I highlighted with respect to their amendments generally, the government does not support the opposition's proposed amendments. Our reforms to the default fund selection process will ensure that default superannuation contributions in modern awards will be directed to funds that meet the best interests of employees covered by modern awards. We are enabling superannuation funds to apply for default fund status on an equal footing. This will increase competition in the default fund market, which will drive product and service improvements for the benefit of both members and employers.

Our reforms largely reflect the approach recommended by the Productivity Commission. I think this is a critical point, picking up some of the issues that Senator Cormann raised last night. I should highlight that we are proud of our superannuation reforms and further refinements are simply that—refinements responding to the recommendation of the Productivity Commission.

The opposition's approach, on the other hand, is for employers to be able to select from any available MySuper product. This approach was comprehensively rejected by the Productivity Commission. On the opposition's approach, the Productivity Commission noted it:

… does not have an explicit focus on the best interests of employees. It assumes that their best interests will be reflected in the decisions made by employers …

This is one of the critical reasons around why industry superannuation was established in the first instance. We know from the history of superannuation that you cannot have a system based on relying on the best interests of employees being reflected in the decisions made by employers.

The commission went on to note that most employers, particularly small- and medium-sized employers:

… do not necessarily have the incentive, interest or expertise to make a decision that is aligned with the best interests of employees …

The government's approach will ensure that the best interests of employees covered by a specific award are protected by ensuring those employees are placed in the most appropriate MySuper products. The opposition's approach was strongly opposed by unions, industry superannuation funds and employers, including the Ai Group. The government is looking after the best interests of employees whose super is directed to the default fund. The opposition are only looking after their own cheap political interests.

In respect of how these changes will improve the existing approach, our reforms ensure that default superannuation contributions in modern awards will be directed to funds that meet the best interests covered by the relevant award. For the super funds, our reforms enable them to apply for default fund status on an equal footing. All funds with a generic MySuper product will be able to apply to the Fair Work commission for selection as a default fund on an equal basis, which will bring greater contestability to the system. We are increasing competition in the default fund market, which will drive product and service improvements to the benefit of both fund members and employers while ensuring that the default superannuation system operates in the best interests of employees and at the same time responding to the clear recommendations of the Productivity Commission.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

I have a few observations in relation to that. That was an extraordinary contribution by the government. Just to explain this: so the government is saying that an amendment which would provide that all MySuper default products—products which are in the process of being legislated by this government—which have in them all of the consumer protection mechanisms that this government judges are necessary, that giving the option for any such products to compete with each other, can somehow be contrary to the best interests of employees? If that is what the government is saying, then it should withdraw its MySuper bills immediately. What it is saying is that even though a super product can qualify for registration as a MySuper default product, consistent with its legislative requirements, that is not in itself a guarantee that that product is an appropriate default fund product. Quite frankly, if that is the government's position, then this whole process—going through three different bills in order to legislate the features of a super product that have to be there in order to ensure that those Australians who are not making active choices about their superannuation are properly protected and have a product that properly caters for their needs—is a complete waste of time.

Given the government is currently legislating to ensure that those Australians who do not make active choices in relation to their superannuation arrangements end up in a default product that has been designed by this Labor government—which is called the MySuper product—if the government is now saying that those products are inadequate and are not in the best interests of employees across Australia, then why bother with that at all? You are completely wasting your time.

The other thing the minister said is that the Productivity Commission recommended against us. That is only a half-truth. The Productivity Commission recommended genuine competition until Minister Shorten bullied them into changing their minds.

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

Please!

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

That is exactly what happened. I refer you back to the draft report, the interim report and the interim recommendations that were put out by the Productivity Commission.

They were very clear in recommending strong and appropriate moves to a more open, transparent and competitive process. Minister Shorten took the unprecedented step for him to respond to a review before it had actually finally reported. That is never what Minister Shorten does. That is completely inconsistent with his usual modus operandi. Everybody that has anything to do with Minister Shorten knows that that is not normally how he does business. It was a very unique approach. Normally, for any report that comes back to him he has a follow-up consultative review and discussion—a review into the review type process. Quite frankly, in a general sense, Minister Shorten struggles with making decisions. But on this one there was a very clear driver: Minister Shorten wanted to protect the vested commercial interests of his friends in the union movement, who clearly have an interest through union-dominated industry funds to preserve the current situation for as long as possible, which gives them an unfair competitive advantage.

The minister talks about the fact that the Australian Industry Group is also supportive of the government's approach through this legislation—prescribing further government intervention through Fair Work Australia, despite the fact that the Fair Work Australia process as deployed over the last four or so years has been widely discredited. There is such a thing in Australia, still, sadly, called the industrial relations club. There are some cosy arrangements at times between organisational stakeholder interests that are separate from the actual best interests of individual Australians. That is what is happening there. They want to have this cosy arrangement through which, behind closed doors and through a non-transparent, non-competitive process, they can make deals. That is not in the public interest.

What is in the public interest is to have the greatest variety and number of suppliers from across the board—industry funds, retail funds, you name it—competing with each other and keeping each other on their toes in terms of fund performance, investment performance, fees and quality of service. Across all these aspects of the superannuation value proposition it is important to have appropriate competitive tensions to ensure that people can make informed decisions about what is in the best interests of employers and employees in a particular set of circumstances.

The minister in her answer today effectively told us that the MySuper default fund product is not worth the paper the legislation is written on, because, in her words, 'Letting employers direct Australians who do not make active choices in relation to superannuation into MySuper default fund products is contrary to the employee's best interests', unless Fair Work Australia can do another job on top of it—

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

I quoted the Productivity Commission.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

That is exactly what you said, Minister. Either the government trusts its own legislation in terms of defining in legislation what a default fund product should look like—either the government agrees that it has come up with the right consumer protection features in their MySuper legislation, and then as soon as a product complies with the conditions of registration as a MySuper product then any of them should be adequate and appropriate and in the best interests of employees that are not making active choices in relation to their superannuation—or do you think that what you have done is inadequate? If so, you should go back to the drawing board. But to somehow say, 'We're going to let all of you register but even though all of you comply with our conditions of registration we are going to determine through a secretive process who is going to be allowed to compete and who is not allowed to compete,' is just completely inappropriate. It seeks to enshrine yet again an anti-competitive arrangement that, quite frankly, has been widely discredited for some time.

With those few words, I will talk through all of the amendments before moving them in turn because, procedurally, I will not be able to move them all together. Essentially, the objective of the amendments that I am about to move is to ensure that there can be proper and genuine competition between the great diversity of MySuper products which will be available from 1 July 2013, and that all Australians in default super can have the benefits of genuine competition between any MySuper product which complies with the government's requirements for registration as a MySuper product and not just with those select few which have been identified through a discredited process through Fair Work Australia.

Amendments (1) and (2) remove commencement dates for schedules that the coalition is opposing. Amendment (3) provides that the changes in the amendments will not commence until after the commencement of relevant schedules in the Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Act 2012—currently a bill before the parliament—that is, to link this amendment with what I have just talked about in terms of the availability of the government's own legislated MySuper default fund products.

Amendment (4) removes schedule 1. Schedule 1 at present amends the Fair Work Act to introduce a process under which the Fair Work Commission will review default fund terms in modern awards every four years. This will no longer be necessary if all MySuper products can be selected under any modern award as we believe should be the case.

Amendment (5) removes schedule 2, which currently institutes the expert panel as part of the Minimum Wage Panel in Fair Work Australia. Again, this is an unnecessary layer of bureaucracy. Consumer protection requirements have already been built into MySuper products—or so we have been led to believe by the government, which is clearly completely internally inconsistent with the way it has approached this.

Amendment (6) makes the substantive change to allow for any MySuper product to be available under all modern awards. Amendment (7) makes a minor consequential change to schedule 11.

Let me also point out that we are moving these amendments today to give the Senate the opportunity to do the right thing, to give the Senate the opportunity to help ensure that Australians who are not making active choices in relation to their superannuation arrangements can nevertheless benefit from the highest possible fund performance, the lowest possible fees and the best possible service and, because of competitive tensions that are engendered through genuine competition, this will lead to a maximisation of their retirement savings. That is the reason we are moving these amendments.

If these amendments are unsuccessful today, this will form part of the coalition policy going into the next election. Given that this government has been so belligerent in refusing to do the right thing in this area by continuing to protect the vested commercial interests of their friends in the union movement rather than do the right thing in the public interest, if this does not get fixed between now and the next election a future coalition government will fix it. With those few words I seek leave to move opposition amendments (4), (5) and (7) on sheet 7304 together.

Leave granted.

I move:

(4) Schedule 1, page 5 (line 1) to page 16 (line 4),

(5) Schedule 2, page 17 (line 1) to page 25 (line 13),

(7) Schedule 11, item 1, page 179 (line 19) to page 180 (line 10), Part 2 TO BE OPPOSED.

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

Just a very brief response to those comments: Senator Cormann has obviously failed to convince the Productivity Commission, which comprehensively rejected the approach that he is now proposing. Suggestions that they were bullied or that it was in an earlier interim report that was open for consultations simply seek to conceal that fact, and for those reasons we will be opposing these amendments.

Mathias Cormann (WA, Liberal Party, Shadow Assistant Treasurer) Share this | Link to this | Hansard source

Consistent with the comments I made previously in this debate, for the reasons that I have previously outlined, I seek leave to move opposition amendments (6) and (3) on sheet 7304 and to take them together.

Leave granted.

I move:

(6) Page 26 (before line 1), before Schedule 3, insert:

Schedule 2A—Superannuation contributions

Fair Work Act 2009

1 Section 149A (heading)

  Repeal the heading, substitute:

149A Superannuation contributions

2 Before subsection 149A(1)

Insert:

  (1A) A modern award must include a term that permits an employer covered by the award to make contributions, for the benefit of an employee covered by the award who is a default fund employee, to any superannuation fund that offers a MySuper product.

  Note: An employer may make contributions under this term even if the superannuation fund to which the contributions are made is not specified in the modern award.

3 Subsection 155A(1) (note)

  Omit "section 149A", substitute "subsection 149A(1)".

(3) Clause 2, page 2 (before table item 4), insert:

The CHAIRMAN: The question is that opposition amendments (6) and (3) on sheet 7304 be agreed to.

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

I move Australian Greens amendment (1) on sheet 7309:

(1) Schedule 5, page 34 (after line 9), at the end of the Schedule, add:

Part 3—Protection for whistleblowers

Fair Work Act 2009

4 Section 12

  Insert:

     public interest disclosure: see subsection 351A(2).

5 After section 351

  Insert:

351A Public interest disclosures

(1) A person (the first person) must not take adverse action against, threaten or harass another person because the first person believes that the other person made, or was going to make, a public interest disclosure.

  Note: This section is a civil remedy provision (See Part 4-1).

(2) A public interest disclosure means a disclosure covered by subsection (3) if it is made in the circumstances covered by subsection (4), but does not include a disclosure of information by a person if the person knows that the information, or part of the information, is false or misleading.

(3) This subsection covers disclosures by a person about any of the following kinds of conduct that the person reasonably believes an employer, employee or an independent contractor has engaged in, or intends to engage in:

  (a) an act or omission that would constitute a crime against the laws of the Commonwealth, a State or a Territory;

  (b) a misappropriation of money or property belonging to another;

  (c) a misuse or concealment of information that relates to, or has been obtained because of, a person's employment, where the misuse or concealment is made for personal benefit or is detrimental to the public interest;

  (d) an act or omission that presents a significant risk to:

     (i) a person's safety; or

     (ii) public health; or

     (iii) the environment;

  (e) an act or omission that has, or is likely to cause, an unjust or unacceptable impact on a person.

(4) A disclosure by a person is made in the circumstances covered by this subsection if:

  (a) either:

     (i) the person has made the disclosure to his or her employer and the employer has failed to properly respond in a reasonable time; or

     (ii) it is not appropriate for the person to make the disclosure to his or her employer; and

  (b) it is reasonably necessary for the person to make the disclosure to a person other than his or her employer.

(5) No action or proceeding, whether criminal or civil, lies against a person for or in relation to a public interest disclosure made by the person in accordance with this section.

6 Subsection 539(2) (column 1 of item 11 of the table)

After "351(1)", insert "351A(1)".

I rise today to move this amendment for the Australian Greens on whistleblowing or public interest disclosure. This is something the Australian Greens feel very strongly about. We note that the government made all sorts of promises about dealing with comprehensive whistleblower legislation, but we are yet to see it.

This is a really important amendment as we know that whistleblowers in Australia are afraid to come forward in many cases because they suffer vilification and frequently they lose their jobs or do not get promotion. So we are in a situation where, instead of transparency and openness and reporting of problems, we have covering up. This amendment will enshrine whistleblowing as a workplace right under Fair Work Australia. The act applies to 80 per cent of the Australian workforce, including the federal government sector, many state agencies and large swathes of the private sector. If claims are made that it covers small business, we can say that the overwhelming majority who are doing nothing wrong have nothing to fear.

Essentially, this amendment will enshrine whistleblowing as a protected right through the existing mechanism in the act called 'adverse action'. What that does is prevent an employer, fellow employee or contractor from taking an adverse action against someone after they have made a public interest disclosure. This could include firing them, demoting them, reducing their pay, cancelling supply orders et cetera. If an adverse action is taken they will be able to claim compensation under the act.

The example that I can give is one that has just been reported in the last couple of weeks—that is, with Mr Twiggy Forrest's Fortescue Metal Group. They commissioned an archaeologist firm to inspect the cultural artefacts and connections of the traditional owners in the Pilbara. When Fortescue did not like the results, they ordered that sections be taken out and they withheld payments until they did. This scourge affects environmental assessments and native title applications too. One firm wrote to the Western Australian department after the requested changes were made and the other refused to make the changes and had to forgo $70,000. In the private sector, whistleblowing protections should extend to contractual right to payment as well as subsequent adverse treatment against contractors if they make a protected disclosure.

Another example is the HIH collapse. This could have been avoided if these proposals were in place at the time. The external actuaries and auditors of HIH relied so heavily on their business that they did nothing when the HIH board refused to heed the recommendations and deferred to the board's authority in fear of upsetting the business relationship and regular work. So there was no incentive or protection for people to blow the whistle on what was clearly going on in that particular company. It is important that we move to recognise whistleblowing as a workplace right.

In addition to adverse action, the amendment also incorporates threats and harassment to stop workplace bullying, which commonly follows disclosure of the information. As we heard recently when a former policeman came forward in relation to what has led to a royal commission into sexual abuse, he knew that his career would be over in terms of the bullying that would go on as he revealed the extent to which moves had been suppressed within the police force formerly.

To qualify for the protections of Fair Work, the whistleblower must first raise the issue with the employer and then, if there is no adequate response to the disclosure within a reasonable time, they may make a disclosure that is reasonably necessary to another person. If it is not appropriate for the person to inform their employer for a justifiable reason, they can immediately inform a third party and still be covered by the scheme. If the above procedure is followed, they would be immune from civil and criminal action arising from the disclosure. It is really important that we take this on board and work now to make sure that we give whistleblowers this workplace right and protect them from any adverse consequences that might occur when they are clearly acting in the public interest. It needs to be not only in the public sector but it also needs to cover the private sector.

The classes of disclosable conduct are listed in the subclause, and there is a catch-all in (e) that says they include 'illegal acts, misappropriating money or property, misuse or concealment of information and risks to public health, a person's safety, and the environment'. In other words, they are disclosable conduct that would be protected by making whistleblowing a fairly extensive workplace right. But a person who discloses information, or even a part of it, with knowledge that it is false or misleading will not be covered by the provisions, so it is not just a carte blanche and it is not trying to encourage vexatious individuals or people making up things or presenting false information. It is actually saying that the provision for whistleblowers covers you providing the information you are giving is truthful and in accordance with what you are claiming. It will cover people in the public and private sectors.

Given the enormous wealth that is being made around the country, particularly in the resources sector, and the decision by the Commonwealth to devolve responsibility to the states for environmental protection and environmental assessment, it is critical that we get coverage for whistleblowers in legislation. I am hoping that there will be support in the Senate for acting on what people say they want—that is, actually protecting whistleblowers in the public interest and making whistleblowing a workplace right.

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

While the government recognises the importance of providing strong protections to workers who act in the public interest, it will not support these amendments. The government notes that the Fair Work Act currently provides some protection from adverse action where a person has or exercises a workplace right. A workplace right relevantly includes where a person is able to make a complaint or inquiry to a person or body having a capacity under a workplace law to seek compliance with the law or a workplace instrument, or if the person is an employee in relation to their employment.

The government proposes that the need for any amendment to the Fair Work Act should be carefully considered following the release of the government's response to the report of the inquiry into whistleblower protections within the Australian Public Service, which is scheduled for early in the parliamentary new year. For example, the proposed amendments are broad and seek to provide protections to a broad range of disclosures without any appropriate framework for who such disclosures should be made to. Nor do they provide potential disclosers with the certainty of whether their actions are legal or not, with the courts having to make decisions about whether the public disclosure was reasonable or not. The government considers this issue is too important to rush ahead of proper consultation and response to the report, and also highlights that these amendments relate mostly to the first tranche of recommendations from the Fair Work Act review panel. It is in this context that we believe these matters should be dealt with elsewhere.

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

Just very briefly, on this occasion I adopt the words of the minister in relation to this—especially her last words—that one of the reasons we should not be considering this is that we should not rush ahead without proper consultation. I think that has been a continuing theme of the coalition and the opposition in relation to this legislation—which, it will be recalled—was introduced into the House of Representatives one day, voted upon on the next day, and then it was exempted from the cut-off in the Senate. It was rushed through here, rushed through a committee, and we have said that proper consultation does need to take place. Clearly what the Australian Greens are doing this morning is to introduce a completely new issue—which they are entitled to do, but it is a completely new issue—in relation to the Fair Work Act regime which has not had consultations with the various stakeholders.

The coalition's amendments specifically deal with matters that have actually been canvassed in the bill and have actually had some exposure, albeit extremely limited. Having said that, the coalition will be opposing the Greens amendments.

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

It is always interesting that when it comes to protecting whistleblowers there are always years and years more consultation that has to happen. Meanwhile, people who have blown the whistle suffer, lose their jobs, lose their promotions and frequently end up being smeared and vilified in the process, and we have years and years more consultation. How many more years do we need before we protect whistleblowers?

I remind the Senate: we have just been going through the Reserve Bank of Australia note bribery scandal. That would not have happened without three very brave whistleblowers who came forward and basically said, 'Enough is enough,' and got that scandal exposed. At the rate the government and the coalition want to move, it would have been, 'No, we have to have many more years of consultation before we work out how we would actually protect those whistleblowers'—not to mention someone like Dave Reid, for example, who came out and made his claim against ANSTO. He was smeared, he suffered character attacks, and of course he was eventually vindicated after he exposed the poor safety controls at the Lucas Heights nuclear reactor. We could go on and name many, many whistleblowers around Australia who have acted in the public interest, who have exposed appalling scandals. The RBA note bribery scandal is a case in point. If we want people to come out and tell the truth, as we had with the Wheat Board, as we have had with the RBA note inquiry and so on, you have to protect them. We have to encourage a culture of people coming forward in the public interest. But all we seem to do is have governments and oppositions, when they change sides, suddenly change perspective on what sort of protections they are prepared to give people who will come forward in the public interest. In the private sector, of course, there is virtually no protection for people at all.

It may interest both the government and the coalition to know that in the United States they have come forward with legislation which actually allows whistleblowers to get some of the benefit if they are saving money, if they are reporting maladministration or fraud. They actually get a percentage of that. That is not something the Greens are proposing, but it is certainly a way for people to have an incentive to watch what corporations and government agencies are doing in terms of reporting when money is being misappropriated, or fraud is occurring or whatever the allegation might be.

I would just stand here and strongly say that you cannot keep putting this off. You cannot keep saying, 'We are going to the election promising all this protection for whistleblowers', and yet the reality is that it is delay, delay, delay, weak action and ultimately we end up with nobody having the courage to come forward. It has been significantly undermined by the move to contracts in the senior echelons of the Public Service. People now are in the position of knowing that their contract may not be renewed.

There are all kinds of problems associated with why we end up not having people coming forward and telling the truth about what is going on in their companies and in the public sector. Senator Collins was talking about an agency. We have talked about having a national integrity commission that would work with the Ombudsman to make sure that when complaints are made if it is maladministration it would go to the Ombudsman and if it is fraud it would go to the Integrity Commission. We have proposed a structure and we have a bill in this parliament to have a national corruption capacity. For the life of me I cannot understand why neither the government nor the coalition is prepared to back a national integrity commission and serious legislation that deals with whistleblowers. I ask them to reconsider and to it least give in-principle support to whistleblowing as a workplace right.

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

by leave—I move opposition amendments (4) and (7) to (13) on sheet 7305 together:

(4) Schedule 8, item 5, page 44 (lines 15 and 16),

(7) Schedule 8, item 57, page 54 (line 6), omit "paragraph 581A(1)(a)", substitute "subsection 581A(1)".

(8) Schedule 8, item 62, page 55 (lines 22 to 30), omit subsection 581A(1), substitute:

(1) Without limiting section 581 (which deals with the functions of the President), the President may, in accordance with subsection (2) of this section, deal with a complaint about the performance by another FWC Member of his or her duties.

(9) Schedule 8, item 62, page 56 (line 2), omit "paragraph (1)(a)", substitute "subsection (1)".

(10) Schedule 8, item 62, page 56 (line 27), omit "paragraph (1)(a)", substitute "subsection (1)".

(11) Schedule 8, item 62, page 56 (line 35), omit "paragraph (1)(a)", substitute "subsection (1)".

(12) Schedule 8, item 63, page 57 (lines 20 to 23),

(13) Schedule 8, item 64, page 57 (line 31), omit "paragraph 581A(1)(a), subsections 581A(2)", substitute "subsections 581A(1)".

(14) Schedule 11, item 21, page 184 (lines 13 to 16),

(15) Page 191 (after line 8), at the end of the Bill, add:

Schedule 12—Australian Workplace Relations Commission

Part 1—Amendments

Fair Work Act 2009

1 The whole of the Act

  Omit "Fair Work Commission" (wherever occurring), substitute "Australian Workplace Relations Commission".

2 The whole of the Act

  Omit "FWC" (wherever occurring), substitute "AWRC".

3 The whole of the Act

  Omit "FWC's" (wherever occurring), substitute "AWRC's".

Part 2—Transitional and consequential provisions

4 Regulations may deal with transitional etc. matters

(1) The Governor General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) In this item:

amendments made by this Schedule includes amendments made by regulations under item 5 of this Schedule.

5 Regulations may make consequential amendments of Acts

(1) The Governor General may make regulations amending Acts (including the Fair Work Act 2009) being amendments that are consequential on, or that otherwise relate to, the amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) Amendments of an Act made by regulations for the purposes of this item can be incorporated into a reprint or compilation of the Act as provided by the Acts Publication Act 1905.

The coalition strongly believes in a strong and independent commission, and it is vital that the Australian people have confidence in Fair Work Australia. These amendments will ensure that the president's powers are not so broad as would provide him with an open remit to penalise people as he sees fit. I do not believe that is necessarily good within any workplace, let alone a workplace such as Fair Work Australia. Regrettably, we do know that there is some disharmony, to put it mildly, at the top of Fair Work Australia. That disharmony received public attention when the President of Fair Work Australia made some observations—I will once again use diplomatic language—about Vice President Graeme Watson's speech in recent times.

Mr Ross told us at Senate estimates that he had 'expressed concern' to the vice president following his speech, in which he expressed concern about the operation of the Fair Work Act and its review.

In July of this year Mr Ross then released a code of conduct which some people interpreted as a thin-veiled attack on Mr Watson. The Australian Financial Review said this code of conduct:

… reads disturbingly like an effort to enforce group-think on his subordinate commissioners.

Under the section headed 'Participation in the public debate', Mr Ross's code directs members to avoid involvement in political controversy when engaging in public debate and carefully consider how they express their views, as they may lead to the perception of bias. The quote goes on:

Other members may hold different views on contentious issues, and may wish to respond accordingly, possibly giving rise to a public conflict between members, which may bring the tribunal into disrepute or could diminish the authority of the tribunal.

Despite all of this, Mr Ross has provided separate advice that:

The President speaks on behalf of the tribunal and its members.

In other words, it is Mr Ross's view that will prevail and no other commissioner will be entitled to express his or her view that may not necessarily 100 per cent align with the president's view. I am not sure that that is healthy for any tribunal or indeed any court. The fact that they should resist involvement in public controversy is, of course, accepted wisdom. But if the president can do so, one wonders why deputy presidents and others cannot do so. What is difficult to swallow by some is that on the very day that Mr Ross appeared at Senate estimates, saying that it was inappropriate for Fair Work Australia tribunal members to 'enter the public debate about such issues', he appeared on the ABC 7.30 program to answer questions about Fair Work Australia's involvement in the investigation into Craig Thomson, despite saying that he had no responsibility for it.

The coalition does have some concerns in relation to what the government is proposing. I understand that the normal practice for tribunals is as is currently in the legislation. Without going into too much detail, what the government is seeking to do is to delete provisions of the existing Fair Work Act and give the president, quite frankly, unprecedented powers. At the moment a Fair Work Commissioner must, under section 640, disclose a potential conflict to the president. I should be starting at 643—Termination for appointment for bankruptcy et cetera. Section 643 reads as follows:

The Governor-General must terminate the appointment of an FWA member if—

then we go down to (c):

(c) the FWA member fails without reasonable excuse to comply with section 640.

Now allow me to go back to section 640 where the member, therefore, without reasonable excuse, does not disclose a potential conflict of interest to the president. If that conflict of interest is disclosed to the president then the commissioner can only deal with it with the president's approval, but the president must give a direction to the Fair Work member not to deal or to no longer deal with a matter if, and then those circumstances are set out. The government is basically seeking to delete a number of those aspects and simply replace it with the suggestion that the Fair Work Commission member must disclose the potential conflict to (a) a person who has made or will make a submission, and to the president, and that there are then no follow-on consequences.

We believe that if a Fair Work commissioner fails to disclose and behave as is currently required under section 643 then termination should take place. There is, of course, the get out, where that failure is without reasonable excuse; so there is that protection for an FWA member. But if they are without reasonable excuse and behaving in a particular manner then the Governor-General must terminate their appointment.

The government is now proposing that the president, basically in his full discretion, will be able to deal with that particular matter. It seems to the coalition that it is unhealthy that so much power should reside with the president of Fair Work Australia. I have also indicated in my other comments that we believe that the powers of the president will be too great, and that it will not be conducive to a healthy, robust Fair Work Australia, where different commissioners might actually be able to hold some differing views and give expression to their differing views—of course, within the bounds of appropriate expression.

I might say that we have that from High Court judges, who from time to time give speeches. I can think of speeches by Justice Kirby where the chances are I would not agree with much at all, yet with former Justice Ian Callinan giving speeches the chances are that I would have agreed with most of what he said. These people sat on the High Court together and the High Court did not fall into disrepute because of it. They were entitled to express differing views. Just imagine if today a High Court judge could not give a speech without Chief Justice French giving his imprimatur. I think that would diminish the High Court and, whilst Fair Work Australia is in no way to be equated with the High Court, being only a quasi-judicial body, it is nevertheless a similar principle that should apply, that there should be that freedom and that we should not have such an oppressive regime being foisted on Fair Work Australia commissioners.

I commend the amendments to the Senate.

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

The government opposes the opposition amendments in this area regarding the powers of the president. The bill sets out clearly in law a complaints-handling process for members of the Fair Work Commission, including the president. The government considers an effective complaints mechanism is an important element of ensuring and maintaining public confidence in the commission.

The government's proposed section 581A provides a framework for the president to deal with complaints against members. The provisions proposed by the government are modelled on similar provisions recently passed by the Senate to deal with complaints made against members of the federal judiciary. Paragraph (1)(b) of new section 581A simply makes it clear that the president, as part of the complaints-handling process, has a responsibility to manage issues that could impact on public confidence in the tribunal. Any steps taken by the president during an inquiry into a complaint must be temporary measures taken until the conclusion of the inquiry and determination of the complaint.

The government supports the president having the discretion to effectively manage the affairs of Fair Work Australia as the head of the tribunal, with responsibility for ensuring that it performs its functions and operations effectively and in a manner worthy of public confidence.

The coalition have indicated that they will oppose the government's proposal to omit section 643C from the Fair Work Act. The proposed omission of the section relates to the amendments that the government has put forward in this bill to streamline and clarify the operation of provisions dealing with conflicts of interest. While a failure to comply with section 640, which deals with conflicts of interest, will no longer be a ground for termination of the appointment of a Fair Work Commission member under the bill, the member still retains the obligation to disclose any potential conflict to the parties and to the president under that section. A failure to disclose the conflict may lead to a complaint being made against the member, which would be dealt with in accordance with the new complaints-handling process set out in the bill.

The government considers that the framework it has proposed will bring greater certainty and transparency to handling complaints against Fair Work members, whether a complaint deals with a conflict of interest or some other matter. The important issue here is to have a mechanism or a process that works within the tribunal. That is why we maintain these proposals as they stand.

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

We have several questions here. The first is that item 5 in schedule 8 stand as printed.

Question agreed to.

The TEMPORARY CHAIRMAN (11:36): The question now is that opposition amendments (7) to (11) and (13) on sheet 7305 be agreed to.

Question negatived.

The TEMPORARY CHAIRMAN (11:36): Finally, the question is that item 63 in schedule 8 stand as printed.

Question agreed to.

Penny Wright (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 7318:

(1) Clause 2, page 2 (after table item 4), insert:

(2) Page 60 (after line 14), after Schedule 8, insert:

Schedule 8A—Better work/life balance

Fair Work Act 2009

1 Paragraph 5(8)(a)

  Omit "or an equal remuneration order (see Part 2 7)", substitute ", an equal remuneration order (see Part 2 7) or a flexible working arrangements order (see Part 2 7A)".

2 Section 12

  Insert:

     flexible working arrangements order: see subsection 306F(1).

3 Subparagraph 43(2)(a)(ii)

  Omit "and", substitute "or".

4 At the end of paragraph 43(2)(a)

  Add:

     (iii) a flexible working arrangements order (see Part 2 7A); and

5 Subsection 44(2)

  Omit "65(5) or".

6 Subsection 44(2) (note 1)

  Repeal the note, substitute:

     Note 1: Subsection 76(4) states that an employer may refuse an application to extend unpaid parental leave only on reasonable business grounds.

7 Subsection 44(2) (note 2)

  Omit "65(5) or".

8 Division 4 of Part 2 2

  Repeal the Division.

9 Section 146 (note)

  Omit "65(5) or".

10 After paragraph 172(1)(c)

  Insert:

     (ca) matters pertaining to flexible working arrangements;

11 Subsection 186(6) (notes 1 and 2)

  Omit "65(5) or".

12 After Part 2 7

  Insert:

Part 2 7A—Flexible working arrangements

Division 1—Introduction

306A Guide to this Part

This Part provides processes for changing working arrangements.

Division 1 deals with preliminary matters.

Division 2 deals with requests for flexible working arrangements, including flexible working arrangements for employees who are carers.

Division 3 provides for the making of flexible working arrangements orders by FWA to ensure that employers comply with this Part.

306B Meanings of employee and employer

  In this Part, employee means a national system employee, and employer means a national system employer.

306C State and Territory laws that are not excluded

(1) This Act is not intended to apply to the exclusion of laws of a State or Territory that provide employee entitlements in relation to flexible working arrangements, to the extent that those entitlements are more beneficial to employees than the entitlements under this Part.

(2) However, a law of a State or Territory has no effect in relation to an employee to the extent that it provides an employee entitlement in relation to flexible working arrangements that is inconsistent with a term of an enterprise agreement that applies to the employee.

Division 2—Requests for flexible working arrangements

306D Requests for flexible working arrangements

   Employee or organisation may request change

(1) An employee, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee's working arrangements.

  Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) Neither the employee, nor the organisation, is entitled to make the request unless:

  (a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

  (b) for a casual employee—the employee:

     (i) is a long term casual employee of the employer immediately before making the request; and

     (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

  Formal requirements

(3) The request must:

  (a) be in writing; and

  (b) set out details of the change sought and of the reasons for the change.

   Responding to the request

(4) The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on reasonable business grounds.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

306E Requests for flexible working arrangements—carers

   Request for change for employee who is a carer

(1) An employee who has responsibility for the care of another person, or an employee organisation that is entitled to represent the employee, may request the employer to change the employee's working arrangements to assist the employee to care for the other person.

  Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) Neither the employee, nor the organisation, is entitled to make the request unless:

  (a) for an employee other than a casual employee—the employee has completed at least 12 months of continuous service with the employer immediately before making the request; or

  (b) for a casual employee—the employee:

     (i) is a long term casual employee of the employer immediately before making the request; and

     (ii) has a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

   Formal requirements

(3) The request must:

  (a) be in writing; and

  (b) set out details of the change sought and of the reasons for the change.

   Responding to the request

(4) The employer must give the employee, or the employee organisation (as the case requires), a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(5) The employer may refuse the request only on serious countervailing business grounds.

(6) If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

Division 3—Flexible working arrangements orders

306F FWA may make flexible working arrangements order

   Power to make flexible working arrangements order

(1) FWA may make any order (the flexible working arrangements order) it considers appropriate to ensure that an employer complies with section 306D or 306E.

   Who may apply for flexible working arrangements order

(2) FWA may make a flexible working arrangements order only on application by any of the following:

  (a) an employee or organisation whose request under subsection 306D(1) or 306E(1) for a change in working arrangements has been refused;

  (b) an employee organisation that is entitled to represent an employee covered by paragraph (a);

  (c) the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner.

306G Implementation of flexible working arrangements in stages

  A flexible working arrangements order may implement changed working arrangements in such stages (as provided in the order) as FWA thinks appropriate.

306H Contravening a working arrangements order

  An employer must not contravene a term of a flexible working arrangements order.

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

306I Inconsistency with modern awards and enterprise agreements

(1) A term of a modern award has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a flexible working arrangements order that applies to the employee.

(2) A term of a flexible working arrangements order has no effect in relation to an employee to the extent that it is inconsistent with a term of an enterprise agreement that applies to the employee.

13 Subsection 539(2) (after table item 9)

  Insert:

14 Subsection 545(1) (note 4)

  Omit "65(5),".

15 After paragraph 557(2)(f)

  Insert:

     (fa) section 306H (which deals with contraventions of flexible working arrangements orders);

16 After paragraph 576(1)(f)

  Insert:

     (fa) flexible working arrangements (Part 2 7A);

17 Paragraph 653(1)(c)

  Repeal the paragraph, substitute:

     (c) conduct research into the operation of the provisions of the National Employment Standards relating to requests for extensions of unpaid parental leave under subsection 76(1); and

     (ca) conduct research into the operation of Part 2 7A in relation to requests for changed working arrangements; and

18 After paragraph 675(2)(e)

  Insert:

     (ea) a flexible working arrangements order;

19 At the end of subsection 716(1)

  Add:

     ; (g) a term of a flexible working arrangements order.

20 Subsection 739(2)

  Omit "65(5) or".

21 Subsection 739(2) (note)

  Omit "65(5) or".

22 Subsection 740(2)

  Omit "65(5) or".

23 Subsection 740(2) (note)

  Omit "65(5) or".

These are the better work-life balance amendments that mirror the Fair Work Amendment (Better Work/Life Balance) Bill 2012 introduced by my colleague Adam Bandt in the other place.

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

The question is that the amendments be agreed to.

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

by leave—I move opposition amendments (15) and (1) on sheet 7305:

(1) Clause 2, page 3 (at the end of the table), add:

(15) Page 191 (after line 8), at the end of the Bill, add:

Schedule 12—Australian Workplace Relations Commission

Part 1—Amendments

Fair Work Act 2009

1 The whole of the Act

  Omit "Fair Work Commission" (wherever occurring), substitute "Australian Workplace Relations Commission".

2 The whole of the Act

  Omit "FWC" (wherever occurring), substitute "AWRC".

3 The whole of the Act

  Omit "FWC's" (wherever occurring), substitute "AWRC's".

Part 2—Transitional and consequential provisions

4 Regulations may deal with transitional etc. matters

(1) The Governor General may make regulations dealing with matters of a transitional, saving or application nature relating to amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) In this item:

amendments made by this Schedule includes amendments made by regulations under item 5 of this Schedule.

5 Regulations may make consequential amendments of Acts

(1) The Governor General may make regulations amending Acts (including the Fair Work Act 2009) being amendments that are consequential on, or that otherwise relate to, the amendments made by this Schedule.

(2) Despite subsection 12(2) of the Legislative Instruments Act 2003, regulations made under this item may be expressed to take effect from a date before the regulations are registered under that Act.

(3) Amendments of an Act made by regulations for the purposes of this item can be incorporated into a reprint or compilation of the Act as provided by the Acts Publication Act 1905.

For all this government's rhetoric about consultation and listening to people, we have another good example of where the rhetoric does not actually match the action. The government set up the Fair Work Review Panel, stacked as it was, skewed terms of reference as they were, and the panel strongly recommended that the name Fair Work Australia should be changed.

What is the government's recommendation here: that the offending part of the title is not 'Fair Work' but 'Australia'. They want to delete the word 'Australia' and insert 'Commission' in direct rejection of the review panel's recommendation that it is 'Fair Work' that is the tarnished name. 'Fair Work' is the sullied name; 'Fair Work' is the name that has fallen into disrepute. Why? Because of this government. This government has tried to make Fair Work Australia into a political vehicle. We know that Fair Work Australia's reputation is diminished and tarnished because of the Health Services Union inquiry and the inquiry into Mr Craig Thomson. I do not need to canvass that scandal any further other than to say that after three long years Fair Work Australia finally came to the conclusion that I think that every other Australian had come to about 2½ years earlier that Mr Thomson was a bad egg, that he had misspent members' moneys. It took Fair Work Australia three long years to come to that conclusion.

It is no wonder that the review panel into the Fair Work Act came to the conclusion that the name should be changed with the deletion of the words 'Fair Work'. Let me remind senators of the actual recommendation. It says:

The panel recommends that the Fair Work Act be amended to change the name of Fair Work Australia to a title which more aptly denotes its functions. It is recommended that the new title contain the word “Commission”—

and the government has done that—

and that it no longer contain the words “Fair Work”.

Was this a bolt out of the blue? No, it was not. The President of Fair Work Australia, Mr Ross, no less, when I asked him at a Senate estimates in May about these matters in relation to the name change, said:

I have put forward two suggestions. Frankly, I do not mind as long as it is not the same as the name of the act. The two names I have put forward are: the Australian Workplace Commission or the Australian Workplace Relations Commission. The key point is not really what the name is. It is that it be separate from the name given to the act and that there be a clear distinction between the administrative functions of the organisation and the adjudicative functions.

So you have got the Fair Work Act Review Panel making this recommendation and you have got the President of Fair Work Australia making that recommendation. Guess who else makes that recommendation? It is not often that we in the coalition would rely on these people as our allies, but listen to this: the Maritime Workers Union said:

The MUA welcomes a return to the inclusion of “Commission” in the name of the Tribunal.

However, the MUA supports calls for further amendment of the name to its natural form, “Australian Industrial Relations Commission”.

The Commission has been and remains a cornerstone of a functioning Australian democracy and is renowned for its fair and efficient management of industrial relations following federation with the enactment of the Conciliation and Arbitration Act 1904.

As such, the Commission deserves a name that is recognised throughout Australia and should revert to its longstanding and accepted form.

So we can go from the extreme and the ridiculous with the MUA, who actually support this, right through to the Australian Metals and Mining Association who submitted:

Enacting a name change from Fair Work Australia to the Fair Work Commission will do little to rectify the branding challenges—

Isn't that a polite way of putting it? Some of us might say the 'trashed reputation', but very diplomatic language was used here. The submission continues:

the tribunal has experienced in the wake of the Health Services Union investigation or to clear up the confusion between the judicial and administrative arms of the Fair Work infrastructure. A more objective name for the tribunal such as the Australian Workplace Relations Commission (AWRC) if far more appropriate.

In its response to the Fair Work review, the ACTU said that they strongly supported the recommendation as it was.

So I ask the question: who is standing in the way of the name change? We have got the ACTU, we have got the Maritime Workers Union of Australia, we have got employer group after employer group—from the big ACCIs and AiG through to the Master Builders, the Housing Industry Association, the Independent Contractors Association, the Council of Small Business of Australia, and we have even got the Law Council of Australia—all supporting this.

Who has submitted or argued that the name should be 'Fair Work Commission'—nobody other than Ms Gillard, who created Fair Work Australia and the legislation. Her vanity is what stands in the way of this very sensible, practical recommendation. Indeed, Labor senators in considering this legislation—and rushed as the committee process was; a matter that I had previously canvassed—said this in paragraph 2.40:

A number of submitters saw merit in resurrecting the title 'Australian Industrial Relations Commission', on the basis that the name is well known and accepted in the community.

Even they were mugged by the overwhelming number of submissions in relation to this.

So, for good judicial and administrative purposes the President of Fair Work Australia has recommended this change. The Fair Work Review Panel, stacked and packed as it was by Labor for a certain outcome with skewed terms of reference, were also mugged by all the submissions that this name change should occur.

Indeed, the Orwellian name of Fair Work Australia, or now Fair Work Commission, has all the hallmarks of the sort of Orwellian naming that this government loves, but it has fallen into disrepute. The name 'Fair Work' is now a trashed commodity within the Australian community and within the workplace relations space. Everybody knows it, from the Maritime Union of Australia right through to the ACTU, all the employer groups, the panel and President of Fair Work Australia and even Labor senators on the committee; but who does not get it? The Prime Minister, in her vanity. Indeed, that is what some of the submitters have suggested. The feedback they have got is that this very sensible change was stopped at the very highest levels of the government.

I am not going to spend any more of this chamber's time on this, but it is yet again another window for the Australian people to see how this government operates. Let us start with consultation—'We will take into account community concerns. We are going to have a thorough, robust panel looking at this.' They made a recommendation that was supported by everybody—it was unanimous. Yet the government will not do it. Why? Because of the vanity of the Prime Minister.

It is a matter of great concern when the proper judicial and administrative functioning of such an important tribunal cannot be rehabilitated with a name change simply because of the vanity of the Prime Minister. She created Fair Work Australia. She appointed the initial personnel to Fair Work Australia. Of course, Fair Work Australia is now a trashed brand. That is recognised across the political divide, across the employer-employee divide and within Fair Work Australia.

Whilst we would argue that a name change is only a small change and there may need to be some cultural change attached to it, this government cannot even bring itself to a name change. If it cannot bring itself to such a basic change as that that has been so overwhelmingly recommended and so overwhelmingly endorsed, it stands to reason that the Australian people will come to the conclusion that this government will set its own course irrespective of the national interest and irrespective of the interests of having good functioning tribunals in this nation because the overriding factor will be the vanity of the Prime Minister. I commend the amendments to the chamber.

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

For the reasons that have already been well canvassed at least three or four times in this debate, the government will be opposing these amendments. Let me conclude with one reflection. The only completely trashed name in this debate is Work Choices.

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

The question is that opposition amendments (15) and (1) on sheet 7305, moved by Senator Abetz, be agreed to.