David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

Prior to adjourning the debate on this we heard from Senator Cameron. Senator Cameron was responding to the amendments which I moved—which are quite little amendments—which basically said that the government should not intrude into the process of negotiating an extension to paid parental leave between an employer and an employee. In the course of that opposition to my amendment he engaged in a fairly broad-ranging attack on me and my values—or what he assumes my values to be. So I think it is probably fairly appropriate that I respond, at least partially, in kind.

His first point was that politicians on $200,000 a year were not qualified or entitled to talk about people on penalty rates. I guess the point there is that I was not always a politician. In fact, Senator Cameron has been a politician for a great deal longer than I, and earning $200,000 a year at the expense of taxpayers for many years, during which time I was earning in the private sector, working for a living. He also implies that one can only be compassionate about low-income people if you are poor or if you are in favour of spending other people's money. Clearly, that is not an appropriate argument.

When we are getting into subjects like appropriateness, he used words which I thought were interesting. He used the word 'unacceptable', then he used the word 'obnoxious' and then he used the word 'fairness'. I do not take any of those personally, but I have to say—and, Senator Cameron, I am delighted that you have joined us; it really would be a waste of my breath to return fire without having somebody to aim at—I am an excellent judge of what is acceptable and unacceptable, I am an excellent judge of what is obnoxious and I am and excellent judge of fairness. In fact, I think I am probably the best judge of those things that I know. In fact, I have never met anybody else who I think is a better judge than me of what is unacceptable, obnoxious or fair. Perhaps you might disagree with me, Senator Cameron, but let's agree to differ.

When it gets to the question of fairness, the question is: what is fair? Should we worry about those people with jobs or should we worry about people who do not have jobs? What is fair about being unemployed? It is very unfair if you cannot get a job because those who have a job are too busy grabbing all of the goodies for themselves. That is what I think the current penalty rates regime does and what the Fair Work Act does. I do not think that Senator Cameron cares about people who do not have a job, and I think that is unacceptable.

He also discussed democracy in the workplace. What a peculiar concept. Do we vote for the boss in the workplace? No, we do not. Do we elect our shareholders, whose money owns the company? No, we do not. There is no such thing as democracy in the workplace.

Senator Cameron also suggested that my thinking was from a past era. Let me tell you, Senator Cameron, class warfare is not the new era. The new era is when the government leaves the workplace to the employer and the employee. It does not legislate how to deal with a little matter, such as the subject of my amendments, which we are in the process of considering, relating to an extension in unpaid parental leave and whether the law should say, 'You must have a formal discussion.'

Finally, Senator Cameron, I am very worried that you attributed all of those qualities of Margaret Thatcher to Senator Cash. Margaret Thatcher is also one of my heroes, and I wonder why you have not compared her to me. Is it because I am not female—which would make you sexist—or is it just simple hair discrimination? I wonder what it could be?

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I find that contribution absolutely bizarre. To say that workers on $30,000 a year—casual workers, seasonal workers and workers who get access to penalty rates—are 'grabbing all the goodies' displays how out of touch Senator Leyonhjelm is from real life. It shows how out of touch this senator is and how bizarre his contributions in this place are on these issues.

The working poor in this country do it tough. They rely on their penalty rates. They rely on their unions to get them a decent lifestyle. They are not in the privileged position that you are, Senator Leyonhjelm, with $200,000 as your base salary. They are not in the privileged position of being able to come here and pontificate on some bizarre views that they might have about any issue, as you do on a regular basis. They are out there battling to put food on the table. To accuse me of not caring for people who do not have a job—nobody who knows me, nobody who knows the Labor Party, nobody who knows our principles would argue anything other than the fact that the position you are trying to adopt is to create a crazy argument over nothing.

This is a serious issue. People who do not have a job are in a very difficult position. I challenge you to put your record of voting since you have been in this place against mine in relation to looking after people who do not have a job. Your record is to attack people who are unfortunate enough not to have a job. Your record is to support the coalition in ripping away the welfare and the support people get from government. That has been your track record since you have been here. How dare you say that I do not care about people who do not have a job, when your track record is out there for everyone to see.

I have news for you: there is such a thing as democracy at work, and the people that deliver democracy at work are the trade union movement in this country. I did it for 27 years as a trade union official—delivering democracy and making sure that the managerial prerogative was subject to checks and balances. That has been my work for 27 years. I am not sure what yours has been, but that is what I have been doing. I have been out there looking after poorly paid workers and the unemployed in all of my political activity over the years—far more than you have demonstrated at any time in your contributions to this chamber. There is such a thing as democracy at work. Yours is a view that harks back to a time when you simply got the employer to tell workers what to do and the employer had complete control over workers when they got on the job. That is an old-fashioned position.

I do not know where class warfare comes into the argument that there should be some rights at work and some legislation to support workers to get a fair go when they go to work. The United States has limited rights, but there are still legislated rights for workers and for bargaining. That is why we have an International Labour Organization. That is why we sign off on ILO conventions, because it is important that there are legislated rights at work. If you simply left it, as your bizarre approach would, to the employer and the employee, then we know where the power would be in that relationship. The power is with the boss; it is with the employer. The employee will end up in a disadvantaged position. That is the history of leaving things to employers and employees.

You only have to go back and look at Work Choices, where individual agreements became the flavour of the day under the coalition. I am not sure if you were a member of the Liberal Party then, but that was the Liberal Party's position. When everything was left between the employer and the employee, what did we see? We saw penalty rates disappear. We saw employers forcing workers into contracts that were take-it-or-leave-it, sign-or-resign contracts. We saw penalty rates go. We saw leave loading go. We saw rates increase by 2c an hour and penalty rates disappear. If you are a union official, you know what it is like when an employer and an employee sit across the table. In fact, there are a lot times when you do not even sit across the table, you are simply given a take-it-or-leave-it proposition. That is the position that workers find themselves in.

If it is class warfare to say that that is unacceptable and that workers should have rights when they go on a job, that workers should be properly paid and that they should get decent penalty rates, then I plead guilty to class warfare. I plead guilty because that is everything I stand for: decent rights at work, some democracy at work and some capacity to make changes for the rights of workers on the job. I have no problem with that. If that is your definition of class warfare, that is fine by me. That is your definition and, as with most of the stuff I hear from you in here, it comes from an ideological position that is at the margins of acceptable thinking in this country. That is where you are, Senator Leyonhjelm—at the margins of acceptable thinking. You will always be at the margins. That is why you are sitting where you are. You are here more by accident than anything, but you are here and we have to deal with it. The Liberal Party say you are not here legitimately. I would not say that; you were elected here. The Liberal Party say that you are here because of the name of your party, and that is how you scraped in. That is fine—you are here and we have to deal with that issue. But do not come here telling the working poor in this country that they are grabbing all the goodies and telling senators here, who have fought all of their lives for a decent society, that they do not care whether people have jobs or not and that we do not care about people who do not have jobs. If you actually cared about people who do not have jobs, your voting record in this place would have been much different since you have been here. It would have been much, much different.

I do not know about Margaret Thatcher being your hero; that does not surprise me one bit. Some people have good heroes and some people have bad heroes. You are simply in the group that have got the bad heroes—with Margaret Thatcher. It is nothing about your sex and it is nothing about whether you are bald—it has nothing to do with that at all; it is about the ideology that underpins it.

Your ideology has been made clear: it is simply that the employer in a relationship with an employee who should have total rights to make determinations. They should have the total right to tell workers exactly how they should behave, exactly what they should do and exactly what the terms and conditions of employment should be. That has not been the case in this country for many, many years, not since the master-servant relationship disappeared. You seem to want to go back to that. I think you are at the fringes of politics in this country. You are certainly at the fringes in terms of your ideology on these things.

You do make a good partner for the Liberals, who actually agree with many of the issues that you are proposing. They, too, are getting more and more at the fringe. There is going to be a test for Senator Cash in her new position as Minister for Employment and whether she will go down the Margaret Thatcher road and try to destroy society as a cohesive thing or whether she will sit down and try to negotiate with the opposition in the national interest on a range of industrial relations matters, and we are open to that.

It is not a matter of your sex and it is not a matter of anything else. You indicated that you support Margaret Thatcher. That is fine—we know there are lots of Thatcherites in here. The public have to understand that at the next election there are people in this chamber who would want to take us back to the worst aspects of class warfare in the UK, to the worst examples of power and privilege, diminishing the rights of ordinary working people, as Thatcher did—and you are in there. That is where you are at. You have made that clear. There is no point in coming and telling me that I do not care about people who do not have a job. As I said, my record would leave yours for dead any day.

You have come here and said clearly where you are. You are to the right of even the Liberal Party on many issues. You have an argument that the individual should have the individual right to negotiate with another individual. I do not agree that that is in the best interests of industrial relations in this country. There is always going to be a role for collective bargaining, there is always going to be a role for legislation that protects workers rights and there is always going to be a role for legislation that tries to even up the imbalance that is there between employers and employees. There always has to be that role; it always has to be there.

There always has to be a right of unions to collectively bargain in the interests of their members, so that we can get some rights in the workplace, so that we do get some democracy in the workplace. And we have this other part of the bill that is coming here too that will destroy collective bargaining on greenfield sites. I am sure you will be putting your hand up there. But I should not pre-empt anything. You should not be that predictable.

Hopefully, you can change your mind on some of these things and vote for collective bargaining, vote for rights for workers on the job and vote for a system that provides decency and fairness when it comes to industrial relations. You might think you are the best person to determine what fairness is. Well, it is a pretty big ego that says, 'I'm the one who can determine fairness.' I think most people would have to sit down and analyse the issues and come up with the arguments about what is in the interests of individual workers and collectives in the workplace. But, given your ego, given your bizarre political underpinnings and given the views that you have on a range of issues, I would not be holding my breath that you would be supporting any positive amendments from the opposition, from any of the crossbench parties or from the Greens here today.

The proposition that you are putting forward will take this country backwards and will take workers backwards. This is simply about saying that workers should have the right to sit down with their employer and, through a legislative process, negotiate and consult and try to reach a determination that is in their interests. But you take the view, it seems to me, that given there is no such thing, in your view, as democracy on the job that people just have to suck it up. I am afraid that legislation has left you behind, public opinion will leave you behind and even the Liberals, I think, will leave you behind on some of this stuff—maybe not too far behind. You are just completely out of touch.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The government will not be supporting the amendments. We consider that the proposed government amendment found in part 1 of schedule 1 of the Fair Work Amendment Bill 2014, which will implement the Fair Work review panel's recommendation 3, provides a sensible and fair improvement to the operation of unpaid parental leave provisions in the Fair Work Act. The government's proposed amendment supports arrangements for balancing work and family commitments without placing an unreasonable burden on employers.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens will also be opposing this amendment. I just want to discuss why that is. Senator Leyonhjelm is proposing to get rid of just a tiny—in fact, almost miserly, almost measly—concession to trying to balance the work and family commitments of people on parental leave and the rights of the employer. Here we have somebody applying to extend their period of unpaid parental leave. All that is being inserted here is that they be given a reasonable opportunity to discuss that with their employer before such a request is refused.

I put myself into their shoes. I had two periods of unpaid parental leave myself. You know that when you go on maternity leave, when you take parental leave, it can be a juggling act as to how much leave you take. Do you minimise your amount of leave because you need to get back to work to earn some money, or do you spend a longer period of time so that you can have time with your newborn child, spend time at home and enjoy that very special time of your life when you have a new child? Here, if you get to the end of your period of unpaid parental leave and you decide that you really do need more leave—if, due to the whole exciting and unpredictable nature of having a new child, you decide that you need an extra two months, three months or six months leave—to then at least have the opportunity to apply for that leave and to discuss with your employer about how this could work, how you feel that it is necessary for you to take this extra leave and how it could potentially work for the employer as well—to at least to have the opportunity to discuss that before it is refused—is a pretty small thing to ask.

It is also a pretty small thing to ask because we are talking about an extension of unpaid parental leave. Here in Australia, unfortunately, workers have pathetic paid parental leave, so it is that unpaid parental leave which is all that people have to rely on. Having the flexibility to be able to extend that parental leave is critical to being able to juggle the responsibilities of being a worker with the responsibilities of being a parent. Not only is it critical for an individual and the organisation that they work with to be able to juggle these responsibilities, but it is critical for our country as well to get the balance right so that people can be supported in their workplace to be a parent, to bring up a family. We need to be able to maximise the contribution of parents to the workforce and to be able to do that juggling act.

We need to be able to access the skills of all workers. It is essential for our future as a fair and prosperous country that all workers can have that ability and that we can have people who have parenting responsibilities, who have kids, who are also able to have flexible work arrangements and move in and out of their working life as their parental responsibilities require. To remove this proposed insertion of just allowing the opportunity to have a discussion about whether you will extend unpaid parental leave is a backwards, miserly and small-thinking action to be taking.

The CHAIRMAN: The question is that part 1 of schedule 1 and clause 2 in item 1 of schedule 2 stand as printed.

Question agreed to.

The CHAIRMAN: The next amendment I had was actually Senator Leyonhjelm's too, but I think it becomes redundant now that that amendment has not been successful.

Ricky Muir (Victoria, Australian Motoring Enthusiast Party) Share this | Link to this | Hansard source

I, and also on behalf of Senators Day, Lazarus, Madigan and Xenophon, oppose schedules 1 and 2 in the following terms:

(5) Schedule 1, Part 2, page 5 (lines 1 to 25), to be opposed.

(6) Schedule 1, Part 3, page 6 (lines 1 to 5), to be opposed.

(7) Schedule 1, Part 4, page 7 (line 1) to page 10 (line 11), to be opposed.

(8) Schedule 1, Part 6, page 18 (lines 1 to 26), to be opposed.

(9) Schedule 1, Part 8, page 20 (line 1) to page 25 (line 14), to be opposed.

(10) Schedule 1, Part 9, page 26 (line 1) to page 27 (line 30), to be opposed.

(11) Schedule 2, item 1, page 29 (lines 19 to 23), clause 3 to be opposed.

(12) Schedule 2, item 1, page 29 (lines 24 to 27), clause 4 to be opposed.

(13) Schedule 2, item 1, page 30 (line 1) to page 31 (line 14), clauses 5 to 8 to be opposed.

(14) Schedule 2, item 1, page 31 (lines 21 to 27), clause 10 to be opposed.

(15) Schedule 2, item 1, page 32 (lines 1 to 9), clause 12 to be opposed.

(16) Schedule 2, item 1, page 32 (lines 10 to 14), clause 13 to be opposed.

The CHAIRMAN: Do you wish to speak to those, Senator Muir?

No, I will be right, thank you. I have made previous statements.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I thank Senator Muir for moving the amendments. Of course, the government supports each and every measure contained in the bill, as I outlined in my summing up speech. Certainly the measures give effect to the government's commitment before the 2013 federal election. However, the government is also committed to listening and speaking with the crossbenchers, listening to their concerns and taking them into account. As such, whilst our conversations continue, the government has decided to support the amendments moved by Senator Muir and on behalf of a number of his crossbench colleagues.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I want to indicate that the opposition supports these amendments. These amendments, I think, are sensible amendments because what they do is take out many of the very bad aspects of this bill that was brought here by the coalition. These amendments to the bill will provide some semblance of decency to the industrial relations position of those opposite. It is a problem still that there are other aspects of this bill that will need to be looked at but these amendments from the crossbenchers are amendments that I think will go some way to help deal with the issues that workers will be faced with.

I would still call on the crossbenchers to understand that doing some good things on one aspect of the bill and then capitulating on other bad aspects of the bill is a problem. This is not about whether there is an argument for these issues. You have always got to look at the bill in its overall context and, even though this is a positive position that has been adopted, there will be a problem further down the track in other aspects of this bill that should be dealt with by rejection because this guts a big part of this bill. That is the reality. It takes away some of the worst aspects of the bill but it does not deal with all of the bad aspects and certainly that is a problem we will need to look at down the track.

The government's position is consistent with what this government has always been about—trying to diminish workers' capacity to come together to collectively bargain. Every opportunity those opposite get, they attack workers' rights and that has been clear from the various pieces of legislation that have been brought into this parliament over the period of the Abbott-Turnbull government. Nothing has changed except that we have now got a publicly declared Thatcherite, sorry, two publicly declared Thatcherites—I forgot Senator Leyonhelm; I should try and remember him now and again—supporting these attacks on workers.

These amendments certainly do make a bad position a little bit better but they do not deal with other aspects that this government will bring in in the future. There is no doubt that, once you start making concessions to this mob over here on industrial relations issues, you are going to be faced with even more attacks on workers' rights. And if the crossbenchers are simply going to capitulate to the attacks on workers' rights then there is no use agreeing to some good things and then agreeing to some really bad things.

I think we need to take this in the context that this is a good approach. We welcome it, we support it but we think more needs to be done on this bill. We are appealing to the crossbenchers. Even though you have agreed to these amendments that make things better for workers, by agreeing to the other aspects of this bill, you are going to gut the principle of collective bargaining in this country. You are going to minimise the capacity for unions to negotiate effectively on the behalf of employees. When you do one good thing, my call would be to do two good things and make sure that the other aspects of the bill are dealt with as constructively as you are dealing with this part of the bill and do not capitulate to the arguments that the coalition are putting up on issues such as greenfields bargaining. Do not capitulate on that. Take the stand that you have taken so far and that stand is one of, I think, some principle. You have taken a stand that deals with a range of problem areas in the bill but you have missed one of the big areas and that is the issue. Do not just go for one small part; go for other aspects of this bill as well.

Abolishing safeguards on individual flexibility agreements that the coalition wanted to undertake was a bad move and I am glad that that has been dealt with. Changes to the National Employment Standards to restrict payment of accrued annual leave entitlements on termination is a bad proposition and I am glad the crossbenchers are dealing with that. The introduction of new provisions that override state laws to permit employees to accrue and take various forms of leave whilst in receipt of workers' compensation is an important issue. Changes to the transfer of business provisions to reduce entitlements for workers should not be there. Why should we be agreeing to these things? And we should ensure that the longstanding fundamental right to take industrial action to improve conditions and terms of employment when an employer refuses to engage in collective bargaining is enshrined. I am worried that even though the crossbenchers have made good steps in this area that they are really going to miss out on one of the key issues of a worker's right to collectively bargain.

Undermining employees' rights to representation by restricting union right of entry for the purposes of discussion with employees is a Thatcherite approach if ever there was one It is good that that is gone. But, if you remove the fundamental right to bargain—as I think is going to happen down the track—many of these things, no matter how good they are, will be weighed up against the bad aspects of this bill, which people look like they are ready to agree to.

So I take the view that we really need to give a lot of consideration to other aspects of the bill. Labor agrees with the propositions that are being put forward in this range of amendments. We support them. Certainly, we may come back into this debate further down the track. We support these amendments as they are put, but we would also ask people to consider them in the overall context of how effective they will be if you start removing the fundamental right to collective bargaining.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

The Greens will be supporting these amendments, but very much on the basis that they are amendments that are making a bad bill slightly better. Overall we still think that the legislation as it stands should not be passed. But, with regard to these amendments: if you are going to have some slight improvements, then you may as well support those slight improvements.

The CHAIRMAN: So the amendments before the chair are: amendments (5) to (16) on sheet 7766. The question is that parts 2 to 4; 6, 8 and 9 of schedule 1; and clauses 3 to 8; 10, 12 and 13 in item 1 of schedule 2 stand as printed.

Question negatived.

Ricky Muir (Victoria, Australian Motoring Enthusiast Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (4) on sheet 7766:

(1) Clause 2, page 2 (table item 2), omit "Parts 1, 2 and 3", substitute "Part 1".

(2) Clause 2, page 2 (table items 3 and 4), omit the table items.

(3) Clause 2, page 2 (table item 5), omit "Parts 5, 6 and 7", substitute "Parts 5 and 7".

(4) Clause 2, page 2 (table items 6 and 7), omit the table items.

The CHAIRMAN: Senator Muir, did you wish to speak to those amendments?

No, thank you.

The CHAIRMAN: The question is that the amendments be agreed to.

Question agreed to.

by leave—I, and on behalf of Senators Xenophon, Day, Lazarus, Madigan and Wang, move amendment (1) on sheet 7767:

(1) Schedule 1, item 27, page 12 (line 31), omit "3 months", substitute "6 months".

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I thank Senator Muir for moving the amendment on behalf of his crossbench colleagues. The amendment that is currently before the Senate amends the proposed new optional greenfields agreement-making procedure by extending the duration of the negotiation period from three months to six months. Again the government is committed to ensuring that greenfields agreements are made in a timely manner, and of course Australians would understand that this is essential if Australia is to attract investment in major projects into the future.

The government is mindful of the views of the members of the crossbench. In this regard we have taken into account their concerns in relation to the three-month period. As such the government supports the amendment proposed by members of the crossbench to extend the new optional greenfields agreement-making time frame from three months to six months.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I have a question for the minister. Minister, can you point to the part of the legislation that makes this six months 'optional'?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

There was no mandatory obligation to commence the negotiation period.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

So it is optional whether you commence negotiations, but it is not optional whether those negotiations go for six months? Is that the case?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

No, it is not. It is optional as to whether or not you start the time running on the negotiation period. That is what the option is.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

So there is no option in reality, in terms of the six-month cut-off period, is there?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

If you turn to section 178B, it states:

… If a proposed single enterprise agreement is a greenfields agreement, an employer that is a bargaining representative for the agreement may give written notice …

And I point out the word 'may'.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

But isn't that just part of the problem with this bill? When you say you 'may' give notice, it means that the employer does not really have to start bargaining and you can drag this out for as long as you like?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

No. If you look at how the bill is going to amend the greenfields provisions, the bill amends the act to extend the good faith bargaining provision rules to the negotiation of greenfields agreements. The intent and the result there is to improve the standards of bargaining conduct.

You would be aware—because I am sure you understand the provisions of the good faith bargaining regime within the act—that the good faith bargaining requirements will mean that employers and unions will be required to, for example, attend and participate in meetings with each other and consider and respond to proposals in a timely manner. So we have the extension of the good faith bargaining regime that is currently in the act to greenfields agreements under this proposal.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Are the good faith bargaining requirements enforceable after the notified negotiation period has concluded?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The answer to that is: no because, obviously, that is when you are with the independent umpire, the Fair Work Commission, and it is stated in subsection 255A(1)(d):

… the following provisions do not apply in relation to the agreement at any time after the end of the notified negotiation period.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Does this mean that, in fact, the reality is that the good faith bargaining provisions are toothless?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Absolutely not. Again, what our bill does that currently is not within the regime is actually extend the provisions of good faith bargaining over to the greenfields agreement. It is only when you cannot reach agreement that you would go to the Fair Work Commission, the independent umpire—but absolutely not in relation to your question. In fact, it is the exact opposite: the good faith bargaining requirements are taken now within the greenfields regime.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Surely, the good faith bargaining provisions can only operate if you have the capacity to enact all of your rights under the act—that is, is to take protective industrial action if there is a problem. The good faith bargaining and the rights that are available to workers at the moment are then removed after that six-month period—isn't that so?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

No, it is not. I am sure you are aware that there are no employees when you are negotiating a greenfields agreement. They are the employer and the relevant unions as the two negotiating bodies because it is a greenfields agreement, so there are no employees. Again, in relation to the good faith bargaining, those provisions currently do not exist. We are adding an extra layer of protection by bringing in the good faith bargaining provisions to this particular part of the act.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

You indicated earlier that then you would go to the umpire. The umpire does not umpire at the end of this period, do they?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am not quite sure, Senator Cameron, if you understand exactly what the provisions that are proposed are going to do. If the employer and the relevant union or unions reach an agreement, the existing process and requirements for approval by the Fair Work Commission remain the same because the employer and the union or unions have managed to reach an agreement—as one would expect would happen in the majority of cases.

If there is a case where an agreement cannot be reached within the six-month time frame, the employee will be able to take the proposed agreement to the Fair Work Commission for approval, the independent umpire. That agreement though will have to satisfy a new requirement. This, again, is another added layer of safety that currently does not exist under the legislation that you brought in—that is, the agreement provides for the pay and conditions that are consistent with prevailing industry standards for equivalent work as well as satisfying the existing approval requirements under the Fair Work Act. So there is now an additional layer of safety requirements that is in-built into this part of the process.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Is it true that an employer and a union who agreed on 15 aspects of an agreement but disagreed about five aspects are under no obligation to stand by their agreement?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

No, that is incorrect. At the end of the six-month period, the last agreement that you put to the union is the agreement that will go off to the Fair Work Commission.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Can you point me to how that reply is reflected in the bill?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am instructed it is item 28(4)(d). I can confirm that an employer can only take a greenfields agreement to the Fair Work Commission to be approved under the new process where it has first given each of the unions that are the bargaining representatives a reasonable opportunity to sign-off on the agreement. This requirement in the bill ensures that the unions have sufficient time to consider the agreement before it is submitted to the Fair Work Commission. Only then can an employer put the agreement to the Fair Work Commission. What the employer puts to the union is what the employer has to then put to the Fair Work Commission.

If there are concerns about the consistency, as I believe you have raised, between documents shared, and ultimately filed, the unions have the standing to participate in the commission and clearly have their say. But, ultimately, at the end of the day, there are already checks and balances within the Fair Work Act to ensure this process is followed. But very much so what an employer puts to the union finally is what an employer then has to put to the Fair Work Commission.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I must say that that is not clear in the act. It certainly is not clear in 28(4)(d). I cannot for the life of me understand how you can come to the conclusion that this means that the employer has to put the document where it is up to, because you spoke about an agreement. If there is no agreement then it is not an agreement that you are taking to the commission. What is it that the employer would take to the commission if it is not an agreement?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I think you and I are going to have to agree to disagree, because I believe that the proposals are very clear. You do not like them and I understand that, but I do think your line of questioning is incorrect. The final agreement that you put to the union is the agreement that the union has had the opportunity to comment on, look at et cetera and is the agreement that you as the employer then have to put to the Fair Work Commission. The safety net which this government is adding and which the former government did not is that the Fair Work Commission then has to look at the agreement and make a decision in relation to the prevailing industry standards, which, as you would know, are higher than the prevailing award.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Do you agree that the final document that goes to Fair Work Australia does not have to be a negotiated document—an agreed document?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

That is exactly the point of what we are doing. At the end of the six-month period, where you have had 100 items that you were negotiating, you have managed to get agreement—as it will be in most cases—on 95 of those items but cannot reach agreement on those final five. To ensure that the group of employees, who are desperate to get into a job and start on a project, are able to commence their jobs in a timely fashion and to ensure that we can get the project up and running, that is exactly what this bill does. It provides a release valve. You can go off to the independent umpire, the Fair Work Commission, and the Fair Work Commission will be able to look at the prevailing industry standards. It does not actually have to approve the agreement, but, if it does, it will be in relation to the prevailing industry standards.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

What guidance does the commission have in relation to prevailing industry standards? Where are prevailing industry standards detailed in the bill?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Greenfields agreements made after what will be the six-month negotiation period—we are only talking about those agreements which have not been able to be negotiated, and one would anticipate based on past practice that the majority of agreements are going to be negotiated and you will not need to go down the path of the release valve—will be subject to the existing greenfields agreement approval requirements, including the better-off-overall test, that the union or unions to be covered by the agreement are entitled to represent the majority of employees to be covered by the agreement and that it is in the public interest to approve the agreement. Additionally, the Fair Work Commission must also be satisfied of the new criterion, which I have now alluded to on a number of occasions. This is the additional layer that this government is adding that the former government did not, and that is that they must also be satisfied of the new criterion that the agreement on an overall basis provides pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

You still have not answered my question. If you go to page 14 of your bill, clause 33 has a note. That note says:

In considering the prevailing pay and conditions within the relevant 25 industry for equivalent work, the FWC may have regard to the 26 prevailing pay and conditions in the relevant geographical area.

Other than that broad aspect, what is the definition of 'prevailing pay and conditions'? Is it the highest pay and conditions that apply in the region? Is it the lowest pay and conditions that apply in the region? Is it some arbitrated outcome that the commission will come to?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am going to give the commission a little more credit than you just have. There is agreement after agreement after agreement that goes before the commission where the commission understands what its role is. Quite frankly, you insult members of the Fair Work Commission by putting to me a question like that. I believe that members of the Fair Work Commission, given the day-in, day-out duties that they undertake, are quite aware of what the prevailing industry standards are.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

This is an entirely new definition. There is no jurisprudence on this issue. There is no guidance for the commission on this matter. Can you explain how the commission will deal with this matter? How will they define the 'prevailing pay and conditions'? Will it be the highest pay and conditions in the area? Will it be the lowest pay and conditions? Will they come to some judgement in between? How does this work? It is no use standing up and saying you have got more confidence in the commission than I have; that is not the answer to the question. The question is: how does the commission deal with the issue of prevailing pay and conditions within the relevant industry for equivalent work? There could be hundreds of agreements in relation to the building and construction industry in the region. How does the commission come to this determination on prevailing pay and conditions within the relevant industry for equivalent work? If they come to a decision less than the highest rates of pay or higher than the lowest rates of pay, are they then engaging in arbitration?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The commission would come to its decision based on its evaluation of the evidence presented to it. I am sure that, in presenting the evidence, both the unions and the employers, who are entitled to present submissions to the commission, would actually do that. I assume the commission would make an informed decision based on the body of evidence that is presented to it—again, as the commission does, on a daily basis.

Sitting suspended from 18:30 to 19:30

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I want to come back to this issue of the prevailing standards and conditions within that industry. The words 'within that industry' give me the impression that we are talking about a national set of standards. The industry operates across state borders—the construction industry, the building industry—but there are some areas where certain standards are established because of the nature of the industry within a state. How do you then determine what is consistent with the prevailing standards and conditions within that industry?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, that is the reason that there is the geographic consideration note that you referred to previously. As you have correctly identified, it is not national as such; you do need to take into account the geographic consideration. As someone who comes from Western Australia I think that is very relevant, obviously, to my state. In a contribution that you made to the debate, you actually referred to the hundreds and hundreds of agreements that are out there. That yet again confirms, and indicates to me, that the Fair Work Commission itself, by the very nature of what it does day in and day out, and what it has done for years and years and years, is well qualified to make determinations as to prevailing industry standards.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

What is the difference between a determination and an arbitration?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The commission is called upon to determine the matters before it. Whether or not it is a determination or an arbitration will depend on the application.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

What do you mean by 'the application'? How does the application determine it? Can you explain that to me?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The application is an unfair dismissal application. Is it an unfair contracts application? That is what the application is in that use of the word 'application'.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I do not know if that makes much sense, Minister. You have said it will be determined by the application. The application is about a greenfields agreement. It is not about unfair dismissal; it is about the greenfields agreement. How does it revolve around the issue of the application?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I think it is a colloquial use of the term 'agreement', and I think that is where the misunderstanding has come from. What I might do—because clearly there is some confusion in relation to what the government is actually putting before the Senate—is take this opportunity to take you through exactly what these changes will do.

In the first instance, because of some issues that were raised previously by you, we need to confirm that we are dealing with greenfields agreements. You made the comment that people would be losing their rights to take industrial action. As you know—well, I hope you know—given that there are no employees when you negotiate a greenfields agreement, that assertion is patently wrong. With a greenfields agreement there are no employees: you have an employer and you have a union or unions and you have a whole lot of people here who would like to work on this project, but until we can get the greenfields agreement up they are not going to be able to. If we can finalise the greenfields agreement, then those people are able to commence employment. I hope that you would also be aware that greenfields agreements can only ever be made with a union—that is the nature of the agreement. There is no concept of an employer-only agreement; the union, or unions as the case may be, must be involved in any greenfields agreements.

What do greenfields agreements do? They provide all participants in this process with certainty at that first crucial stage of a major project. I hope that we would all agree that in this country we need more major projects so that we can increase our productivity. What a greenfields agreement will do is: it will give employers certainty, it will give those prospective employees certainty, it will give the clients certainty, it will give the financiers who are backing the agreement certainty that the project is going to go ahead. Where a process takes too long, as the case has been, it puts these vital jobs at risk. That is what we are looking at mitigating throughout this process. What then occurs is that the employer and the union, or unions, will enter into negotiations.

Senator Cameron, one of the fundamental differences between the process we are putting forward and the process currently in place under the legislation which your government brought in is that at this time the good faith bargaining provisions do not apply. That is a very important consideration. They currently do not apply because your government did not extend the good .faith bargaining provisions to greenfield agreements. So what we are going to do with the provision currently before the Senate is to extend the good faith bargaining provisions to greenfield agreements. Obviously, that will improve accountability in the negotiation process. Then, of course, bargaining can continue and if you reach an agreement you will obviously go through the normal processes. I would certainly anticipate that in the majority of cases the employer and the relevant union or unions will be able to reach an agreement.

To cater for those circumstances in which an agreement is not able to be reached, an employer then has the optional process of commencing the six-month period by notifying the union. Then obviously the bargaining continues and I think we would all hope that during that six-month period an agreement can be reached between the employer and the union or the unions. If it is not reached at the end of that six-month period or if you have managed to reach agreement on 95 out of 100 provisions, then the employer has a safety valve release. The employer is able to go to the independent umpire—I think we all acknowledge in this place that the Fair Work Commission is the independent umpire—to ask the Fair Work Commission, as the independent umpire, to resolve the impasse. The employer does not have to do that. They can continue to negotiate ad infinitum if they want to, but if they do want the release valve they are then able to go to the Fair Work Commission.

In terms of the comments you made previously on the agreement that the employer is able to put to the Fair Work Commission, the proposed agreement that the employer provided to the union is the document that is able to be put to the commission for approval. In other words, the union must have been given the reasonable opportunity to consider agreeing to the document that is filed with the Fair Work Commission.

If an employer files a different document, as you alluded to previously, from the document which was shown to the union, as you would know Senator Cameron—obviously you have been doing this for a very long time—while the commission is considering the document which has been filed with it, they will upload it to their website as a proposed agreement. So clearly at that time if there is a difference between the document the unions had the opportunity to comment on and the document that the Fair Work Commission is now looking at, I would assume the unions would immediately put on application into the commission in terms of that particular greenfield agreement.

It also needs to be remembered that the Fair Work Commission itself does not have to approve an application. There is no onus on the Fair Work Commission to approve an application. If the Fair Work Commission is not satisfied that the agreement meets all of their approval requirements, it does not have to approve that particular agreement. You would be aware that those approval requirements are set out in part 2-4 of the act and include a number of requirements, including that the commission must check that the agreement does not contravene the National Employment Standards, that employees will be better off overall, that it must not include any unlawful terms, that it must include a dispute resolution clause and that it must have a flexibility clause et cetera. In addition, with this amendment the government is adding in some additional requirements for greenfield agreements. So greenfield agreements approved under this particular mechanism must provide pay and conditions consistent with the prevailing standards within the relevant industry for equivalent work and you take into account the geographical location.

Senator Cameron, you obviously do not like this, but it is a fundamental difference between what your government provided for in the current process, which is a comparison with the relevant award, versus what we are saying, which is the prevailing industry standards, which are much higher than the award. This is actually a good thing. We are increasing the standards against which the agreement is going to be judged. On top of that, we have added in another layer to ensure that the agreement is in the interests of everybody and that is that under this particular clause—and it is not currently under your legislation—it must be in the public interest to approve the agreement and that is a decision for the very well-qualified Fair Work Commission who, again, based on your own admissions in your evidence, deals with hundreds upon hundreds of agreements and it does this day in and day out.

There is another safeguard which we are putting in place that is not currently in place and that is, of course, the union with which the employer makes the greenfield agreement must cover the majority of the workers. Again, if there is a difference between the document put up for approval and the document given to unions for their consideration, the Fair Work Commission is not going to approve that document.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Let me deal with the last issue, that the unions must cover the majority of workers. On a greenfield, are you saying that prospective employees, as distinct from a union, cannot be a bargaining agent?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Under the definition of a greenfields agreement there are no employees; it is an agreement between the employer and the union or unions. The employees are not yet part of that process.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

There could be prospective employees who are not members of the union. Would they have any bargaining standing?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I can confirm that the answer is no. This is the way you set it up under your legislation. In terms of a greenfields agreement, it states in the legislation that the negotiation is done because it is a greenfields agreement between the employer and the union or unions. By its very nature there are no employees.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

You also indicated that there were a number of basic tests, that there would be no approval unless there was a better-off-overall test, a dispute-settling procedure, flexibility, no unlawful terms et cetera. These issues may vary. The terms of a flexibility agreement may vary from site to site in the industry. How does the commission deal that?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am sorry, Senator Cameron but, again, you almost insult the commission. They will deal with it in the usual way. They do this every day—day in, day out. They are way more qualified than you and I are in relation to what you are asking them to do.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

You indicated there was no concept of an employer agreement. If an agreement comes before the commission and the unions have not agreed to that agreement and it contains provisions that the employer is proposing, how do you describe that? It is not an agreement that is coming before the commission, is it?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, again, with all due respect, I think you fundamentally misunderstand the nature of greenfields agreements. Greenfields agreements by their very nature, as you know, mean that you must have an employer and you must have a union or unions. That is the very nature of a greenfields agreement. There are, at a minimum, two parties to this. If there is more than one union, there will be more than two parties.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

But those parties may not agree, so there is not an agreement. Where is the agreement under proposed subsection 182(4)(d)? Could you explain how 182(4)(d) constitutes an agreement.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

What is put to the commission is a proposed agreement. It is something that the parties are proposing to agree to. Once the Fair Work Commission stamps it, it becomes an agreement.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

That is not true, because the parties may not want to agree. There could be differences. That is the issue here. If there are differences between the employer and the union, that is not an agreement, is it?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I think you and I are going to have to agree to disagree. As I said, as you and I both know, this happens every single day within the commission. All we are doing here is saying, 'There are major projects in Australia which require certainty. There is a pool that people out there who but for an elongated negotiating process would actually be in a job, earning a wage and accruing entitlements and superannuation.' There are financiers out there who are saying, 'Unless we know you have an agreement, we are not going to give you the money to ensure the project goes ahead.' There is nothing we are trying to do here that is not literally within what is set out in the proposals. They are just some small changes to what we believe is a system that currently does not work.

How can you disagree, Senator Cameron, with this government implementing the good faith bargaining provisions into the greenfields negotiations? You cannot tell me, in all good conscience, that you do not agree with that. We are adding an additional layer to this process. We are also requiring that the agreement be in the public interest. That is currently not required.

Senator Cameron, you and I could sit here all night. That is fine. You clearly want to delay this until 9.50. I accept that. That is pure politics. You did that three weeks ago and we did not go to a vote, and you can do it again tonight. You are absolutely entitled to do that. But my answers are going to be my answers. If you do not like them because you would prefer your amendments get up that is fine. We can agree to this amendment and you can put your amendments and then we can debate them and talk with the crossbenchers about them. But, literally, what I am saying here is not going to change your mind in relation to what I believe is a very good amendment. This amendment is going to assure that, when an agreement cannot be reached, there is a release valve that can be utilised and the independent umpire can step in. That is it. Then prospective employees can become real employees. They can have a job, get paid and accrue entitlements. That is all this is doing.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Minister, I wish it was that simple but it is certainly not as simple as the spin that you have just put on it. You talk about providing certainty. I think the issue of certainty in my mind is still not clear from what you have told us.

I notice in the explanatory memorandum the government says there are three objectives: one is to ensure that there are realistic time frames for negotiation; the second is to ensure that negotiations do not delay or jeopardise investments in major projects; and the third is to provide that the interests of employees to be covered by such agreements are protected. I do not think—and Labor does not think—that these amendments that you have put forward achieve these three overarching policy objectives as they are described. One of the reasons it will not achieve them is that I am sure you have sold it to the crossbenchers that after six months there is certainty for this investment. There is no certainty, because there is an appeal process.

Firstly, Labor definitely supports good faith bargaining but we do not see this as being good faith bargaining; we see this as a termination of bargaining rights. That is what it is. It is not a release valve. You can call it whatever like—you call it a release valve. It is actually the termination of rights in terms of bargaining in this country. I want to ask you this: if it is about certainty, how does the appeal process work?

Zed Seselja (ACT, Liberal Party) Share this | Link to this | Hansard source

Just before you proceed, Minister, could I just make the point: there has been a bit of back and forth. I know other senators have been trying to get the call. I just ask for senators to wait till they get the call before speaking. It might make it a little easier. I know Senator Xenophon has been waiting patiently, and I will go to him very soon. Minister.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Thank you, Chair. The appeal rights would work in the usual way.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I am happy to give way if people—

The TEMPORARY CHAIRMAN: No, I just asked for people to wait for the call because there have been other people on their feet. Senator Cameron.

Thanks, Chair. So they operate in the normal way. Some appeals can be very lengthy. Are there any proposals for having a fast-track appeal process or stopping an appeal process running for an extended period of time?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, Senator Cameron, I am going to give the commission the benefit of the doubt here and I would assume that they would based on the evidence that they are presented with and their extensive knowledge in this area be inclined to get it right in the first instance.

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

Mr Acting Chair, it would be remiss of me not to make a short contribution in relation to this amendment given that I was meant to move it. Instead, Senator Muir, because I was at a meeting with an assistant minister, moved it on my behalf and on behalf of the others who are co-sponsoring this amendment, and I am very grateful for that.

The key issue here relates to the Fair Work review of the Gillard government in 2012. I say at the outset that, in the to-ing and fro-ing between Senator Cameron and Minister Cash, I think Senator Cash has a very worthy adversary in Senator Cameron. I say that in a genuinely complimentary way to test the assertions, to have that genuine debate and to have that review of the legislation.

My position on this particular amendment that I have co-sponsored with a number of my colleagues from the crossbench is that we do need reform in relation to greenfields agreements. What the 2012 Fair Work review from the Gillard government said at page 168 at 6.5.1 in part was:

In particular, Work Choices introduced ‘employer greenfields agreements’, which allowed an employer who, namely the capacity for an employer proposing to establish a new business, project or undertaking to unilaterally determine the content of the instrument that would apply to its future employees. In contrast, FW Act greenfields agreements were to be ‘true agreements negotiated between the relevant bargaining representatives and made by more than one party’.

I think it is fair to say that what Work Choices wanted to do with greenfields agreements was unreasonable. It was unilateral. People's benefits could have been reduced. There was no better-off overall test and therefore that was an untenable position. But what the Fair Work review of a former Labor government said is that there was need for reform. The commentary in relation to this particular section went on to say:

Some employers propose that good faith bargaining principles should apply to greenfields negotiations. The AWU also supports this proposal. The Ai Group considers this unworkable, as it could lead to bargaining with multiple unions competing for coverage in the workplace.

That is something that needs to be considered, but I think the fact that there is a framework here for good faith bargaining is important.

The review panel at 6.5.3 at page 171 said:

We were provided with a number of case studies in submissions and in consultations that suggested the current system of greenfields agreements is not operating efficiently. Employers and their representatives claimed that, in light of the requirement to bargain with a union in order to secure certainty about terms and conditions to apply on a project, they are required to agree to terms that are economically unsustainable. They also claimed that unions withhold agreement to address issues unrelated to the project, which puts projects in jeopardy. Employers say the requirement to negotiate with the union or unions that have majority coverage is partially to blame because it has reduced competition between unions and therefore reduced the likelihood of reaching agreement on satisfactory terms.

That is what a Gillard government appointed panel review said about that. It goes on to say:

The FW Act addressed a key problem identified by the Government with Work Choices, namely the capacity for an employer proposing to establish a new business, project or undertaking to unilaterally determine the content of the instrument that would apply to its future employees.

The panel goes on to say:

We accept that the Work Choices framework conferred greater freedom on employers to unilaterally determine wages and conditions. As we note in Chapter 4, we are not convinced that, currently, the economically relevant outcomes are significantly different.

Clearly, that was unfair. Clearly, it was something that was untenable in terms of the former Work Choices legislation. But the panel appointed by the Gillard government stated:

However, based on the evidence we have received in submissions and consultations, and a review of the data associated with greenfields agreements above, we consider that there is a significant risk that some bargaining practices and outcomes associated with greenfields agreements potentially threaten future investment in major projects in Australia. This is because the existing provisions effectively confer on a union (or unions) with coverage of a majority of prospective workers a significant capacity to frustrate the making of an appropriate greenfields agreement at all or at least in a timely way. Unions in this position are able to withhold agreement and effectively prevent the determination of terms and conditions in advance of a project commencing. In light of the evidence we were presented about the need for certainty over the labour costs associated with major projects, we are concerned at the risk of delays in greenfields agreement making that this entails. We have considered a range of mechanisms to address these concerns. We do not consider that a return to employer greenfields agreements is appropriate.

One of the recommendations was to have some certainty. One of the recommendations was to have a time limit. Having a six-month time limit—as this amendment moved by me and a number of my crossbench colleagues, as tabled—is, I think, a way through this.

I am very happy for Senator Cameron to ask whatever questions he thinks are necessary on behalf of the opposition. I think what he is doing is very important. But the current system of greenfields agreements is not working; it is actually holding up jobs and major projects. Senator Cameron is a champion of workers' working conditions and he is also a champion of jobs. I fear the existential crisis we are going to face in this country, particularly at the end of 2017, when the auto sector in this nation effectively shuts down.

I must say that the recklessness of the comments of former Treasurer Hockey did not help at all. I thought they were reckless comments by former Treasurer Hockey. We desperately must do all we can to have well-paying, good jobs in the economy, in manufacturing and in these major projects that are anticipated in this greenfields agreement. That is why I move this amendment. That is the position I have come from. I hope Senator Cameron appreciates that the position I come from is one about securing major projects and well-paid jobs. Right now we are at a stalemate. Right now one of the unintended consequences of the Fair Work legislation is effectively to stall these agreements because of what I see as a loophole and as something that was not thought through. That is why—to its credit—the Gillard government initiated this review to look at these issues where the Fair Work Act was not working as intended. That is why I support and have proposed this amendment with a number of my colleagues.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I would like to respond to a couple of the issues that Senator Xenophon has raised. The 'existential crisis': I assume Senator Xenophon is talking about a wider employment crisis, but not a crisis in relation to greenfield agreements?

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

Yes, we need to look at it holistically.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Senator Xenophon, as I understand it, is not talking about an existential crisis on greenfield agreements. I also want to go back to the evaluation by the panel. On page 82, in the second paragraph under 4.6.6 the panel says:

The Panel accepts that the Work Choices framework conferred greater freedom on employers to unilaterally determine wages and conditions. It is less clear that the economically relevant outcomes are very different. For example, the Panel was not presented with evidence that any significant project had not proceeded for want of an agreement.

It then goes on to talk about wage gaps which, when you read the detail, are negligible. The issue that Senator Xenophon raises about the problems with these agreements have not shown up in reality. My question to the minister is: how many greenfield agreements have not proceeded because of failure to get agreement with the unions?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, I note that you are quoting from page 82 point 4.6.6 of Towards more productive and equitable workplaces: an evaluation of the Fair Work legislation. I note that the final paragraph does actually say:

The Panel is concerned, however, that the existing provisions confer on a union (or unions) with coverage of the majority of prospective workers a significant capacity to frustrate the making of an appropriate greenfields agreement at all or at least in a timely way. While the Panel was not presented with evidence that this power is abused, it concluded that the potential risk to projects of national significance should be mitigated.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I do not think that there is any difference in terms of the broad philosophy of ensuring the three points that the coalition argue were their underlying principles to deal with these agreements. We do not have any argument about ensuring that there are realistic time frames for the negotiation of greenfield agreements. In fact, we will be moving amendments that will give more certain outcomes to this. That is what I would say to the crossbenchers. There has been absolutely no clear undertaking from the government that the six months can be achieved because there is this lengthy appeal process.

We also want to ensure that negotiations do not delay or jeopardise investments in major projects. That is why we are bringing amendments to the chamber this evening that go to that issue. We fundamentally want to ensure that the interests of employees to be covered by agreements are protected. I do not think that those tests are met by the government's position. They are certainly not met, because the realistic time frame for the negotiations of six months and then termination of bargaining rights—in my view and in the view of Labor—is a problem. Why do you terminate the bargaining rights of unions without any evidence other than speculation that there could be a problem? That is what we are doing tonight: speculating that there might be a problem and determining a termination of International Labour Organization standards. If you want to ensure that the negotiations do not delay or jeopardise investments in major projects, then you must make it clear.

What we are saying is that the outstanding issues between the parties should be arbitrated. That fixes the issue of certainty. There would be no certainty under the coalition with endless appeals in relation to the proposed 'agreement'. I use quotes because it is not an agreement that we are talking about; it is basically an employer document that they want approved. I do not think that is in the interest of employees who would be covered by the agreement.

Minister, it is true, isn't it, that this is still just a unilateral agreement with some safeguards? Did the Fair Work review recommend the government's model? If not, why did this model come about? Did the Fair Work review have arbitration as one of its central elements?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

In relation to your first question: no, absolutely not. These are greenfields agreements. As I have already tried to articulate several times tonight, a greenfields agreement has at least two parties: the employer and the union. If there is more than one union, then it is the employer and the unions. So the answer to your first question is no.

I do not agree with your analysis of why the coalition is bringing in this particular amendment. All I can go back to is this: as we all know, and as Senator Xenophon put so eloquently, greenfields agreements are vital for the commencement of new projects. What the bill is going to ensure in a very simple manner is that these agreements are negotiated, as I have said, subject to the good faith bargaining provisions that are currently not in there. We are bringing them in within a reasonable time frame and, of course, if the commission finds that they are in the public interest.

It is 10 past eight. If you do not want to vote on this tonight, that is fine. I accept that. But I think you and I are going to have to disagree going forward. If you want to put your amendments, let us vote on this one and then you can argue the merits of why you say arbitration is a more appropriate way to deal with this. The only thought that I would leave with the crossbenchers on that is: the Qantas arbitration, I understand, took 449 days. We do not have that time to waste in this country. We have people out there who need jobs. We have employees who need to be paid. They need to be in work. We just want to provide them with certainty in these circumstances.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I asked three questions. I only got an answer to the first question, so I will persevere. If the minister wants this to be expedited, then the minister will need to answer some questions I am afraid. Did the Fair Work review recommend the government's model? Did the Fair Work review have arbitration as one of its central elements?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

You have read the Fair Work review. I have quoted from the Fair Work review. It clearly noted that there were problems with the way greenfields agreements are being negotiated. What I can also say to you is that the Fair Work review did not recommend the option that you are putting on the table in that regard.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I will try again: did the Fair Work review recommend the government's model?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The system that we are proposing is far closer to what the Fair Work review recommended than the amendments that you have put on the table at the last minute.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I suppose that is a matter of spin that you are putting on your position. For the public record, let us be clear: the Fair Work review did not recommend the government's model and the Fair Work Commission did have arbitration as one of its central elements, so it is more closely aligned to what Labor will be proposing in our amendments as we go down the track in this debate.

Is it true that if the Fair Work Commission declines to make a greenfields agreement, then the operation of proposed section 255A means that there would be no conciliation available and no good faith bargaining to resolve the agreement in the future?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

The Fair Work Commission, as you know, can reject an application to approve one of these greenfields agreements if it is satisfied that the agreement itself does not meet some or all of the approval requirements which we have been through at length tonight. If the Fair Work Commission does not approve the greenfields agreement, the employer is able to recommence bargaining for a new proposed greenfields agreement. Unlike the current system, what we are introducing is that good faith bargaining rules would apply and the employer would retain the option of issuing the notice to commence the six-month period. So, again, you would bring in the good faith bargaining provisions to this next round of negotiations in the event that the commission said, 'We will not approve the agreement.'

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I want to be clear about this. If we are talking about certainty and we are talking about having certainty for investment, what you have just outlined is a process that provides no certainty. If the commission finds a problem with the agreement then the whole process commences again and you have another six months. If at the end of that six months we still have a problem with the commission not accepting the agreement, it could run again for six months. This is a big problem. That is why we took the view, consistent with the panel, that there should be a process of arbitration introduced into this whole agreement-making process.

You have an open-ended issue that you have not dealt with, and we have an issue that would bring it to some finality in a short period of time after the six months. My view is that the longer we go tonight, the more concern there is in relation to the issue of certainty for projects, given what you have just indicated to the parliament. Would it not be better to adopt an arbitration process as outlined by Labor in its amendments?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, the answer to your final question is no and, again, I go back to the Qantas arbitration that took 449 days. For someone who claims to be familiar with the workings of the body that is currently known as the Fair Work Commission and its previous iterations, I hope you really do appreciate—because, if not, we have a real problem—that the appeals process that you have gone through is exactly what can happen now. It can happen under your system and it can happen under our system. What we are implementing is a six-month relief valve. Everything you have said that is unique to this situation—I think you actually do know, Senator Cameron, because you have been around this area for a very long time. There is no different to the process that happens now and there is no difference to the process that you are proposing.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to.

Question agreed to.

The TEMPORARY CHAIRMAN: Item (3) on sheet 7771 is identical to the amendment we have just done so we will move on and go to (4) and (5) on sheet 7771.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

So this is sheet 7771?

The TEMPORARY CHAIRMAN: Yes.

I seek to move to sheet 7768.

The TEMPORARY CHAIRMAN: Yes, we will move to 7768.

by leave—I move government amendments (1), (2) and (3) on sheet 7768:

(1) Clause 2, page 2 (table item 5), omit "Parts 5, 6 and 7", substitute "Parts 5 and 6".

(2) Schedule 1, Part 7, page 19 (lines 1 to 10), to be opposed.

(3) Schedule 2, item 1, page 31 (lines 28 to 32), clause 11 to be opposed.

In terms of how the proposed amendments work, this would be one of the lead-in issues that we have to deal with. This amendment from the government seeks to introduce the concept of notification time. That would mean you would go back to section 173 of the act where you would have to get the employer agreeing, majority support determination and a scope order or a low-paid authorisation as a threshold issue moving to where we are in this area of greenfield bargaining.

We believe this is about putting more delays into the process, weakening the capacity of the unions to actually commence bargaining. Our position is that bargaining under the Fair Work Act must be done in accordance with good faith bargaining requirements. We do not have a problem with that. There can be no application for a protected action ballot order and no protected industrial action unless the commission is satisfied that the applicant is genuinely trying to reach an agreement with the employer. These requirements, to bargain in good faith and to be genuinely trying to reach agreement, provide a more than adequate threshold for taking action.

The government's proposal is an unnecessary restriction on the rights of workers to take strike action under international law. It is certainly not justifiable given the incredibly low levels of industrial disputation at present and it is certainly not justifiable in the concept that if you move to adopt the proposition that Labor is proposing, then you would not have to go down this path; you would simply commence bargaining after six months. That would be a genuine relief valve and genuine certainty for employers because the issue would then go to an arbitration.

So this is another example of a number of amendments by the government which make it difficult for unions to bargain. It is an impediment. We hear much about bureaucracy from the other side. We hear much about red tape from the other side. But 'bureaucracy' and 'red tape' have a different definition when it comes to unions than they do for the general economy when the coalition are talking about it. It is about increased bureaucracy and increased red tape. These issues should be rejected, and they should be rejected on the basis that they are nothing more than an impediment to proper bargaining.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, I do not know what amendment you were talking to, but—just for the benefit of the chamber—what you have just said has almost nothing to do with the amendment that we are proposing. In the first instance, I just want to ensure that you understand that there are no employees in a greenfields agreement. You keep referring to this industrial action that might be taken. This amendment has nothing to do with greenfields agreements.

This is a totally separate amendment. It is literally closing a loophole. That is it. It is a loophole that was recognised by your own panel, appointed by the now Leader of the Opposition, Mr Shorten himself, which reviewed the Fair Work laws in 2012. That review itself recommended that the Fair Work Act:

… be amended to provide that an application for a protected action ballot order may only be made when bargaining for a proposed agreement has commenced, either voluntarily or because a majority support determination has been obtained.

That is it. That is all we are talking about: closing a loophole which, across the board, people agree was probably an unintended consequence when the drafters were originally drafting the legislation.

In plain English terms, what does this amendment do? The amendment that was recommended by your own review panel removes the strike first, talk later loophole. That itself is consistent with what former Prime Minister Rudd said at his National Press Club address way back in 2007, where he himself acknowledged:

… industrial disputes are serious. They hurt workers, they hurt businesses, they … hurt families and communities, and they certainly hurt the economy.

He said:

They—

the employees—

will not be able to strike unless there has been genuine good faith bargaining.

Chair, I am not quite sure where the misunderstanding with Senator Cameron has come from. Currently, under the Fair Work Act, as I said, this is merely a loophole, which is being closed. You can actually have strike action before bargaining has commenced. All this does is close that loophole and provide that protected industrial action can only be taken if bargaining has commenced. That is it. That is as simple as the amendment is: closing a loophole. It is recommended by your own review panel, the panel that Bill Shorten, the now Leader of the Opposition, himself recommended. All it means is that industrial action cannot be the first step in a bargaining process; you have to have the bargaining commence, and then you can take industrial action. It is as simple as that.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

I just remind the committee that the question before it now is that part 7 of schedule 1 and clause 11 in item 1 of schedule 2 stand as printed. You, Senator Cameron, are obviously talking in relation to amendments (2) and (3) on sheet 7768—correct?

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Yes. Minister, sheet 7768 applies generally. It is not about greenfield agreements; it is about a general application of industrial law across industry and across different industries. Minister, bargaining cannot take place unless it is done in accordance with good-faith bargaining requirements. That is the current law. That is the situation as it exists. There has to be good-faith bargaining. It must be done in accordance with good-faith bargaining. There cannot be an application for a protected action ballot order and there cannot be industrial action unless the commission is satisfied that the applicant is genuinely trying to reach an agreement with the employer.

So, Minister, why do we need this if there are these two threshold issues? One is that you have to be negotiating in good-faith bargaining. And, secondly, you cannot get a protected action ballot order unless the commission is satisfied that the applicant is genuinely trying to reach an agreement with the employer. That is the current position: good-faith bargaining, genuinely trying to reach an agreement. We say that this is an appropriate and adequate threshold, and therefore we oppose your amendments in this area.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, I think you and I are just going to have to agree to disagree on this. This is a very simple amendment. It adopts the recommendation of your own Fair Work review panel, appointed by the current Leader of the Opposition himself, when it reviewed the Fair Work laws. I can read you what the 2002 Fair Work Act review recommended:

The Panel recommends that Division 8 of Part 3-3 be amended to provide that an application for a protected action ballot order may only be made when bargaining for a proposed agreement has commenced, either voluntarily or because a majority support determination has been obtained.

Then it states that the Fair Work review panel considers it is 'incongruous for industrial action to be available to bring pressure to bear on an employer to bargain outside of those circumstances'.

Again, this is a loophole that is being closed. Industrial action absolutely can still occur, but all that this is saying is that it can only occur after bargaining has commenced. It is a simple amendment recommended by your own review panel, which we are happy to adopt.

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that part 7 of schedule 1 and clause 11 in item 1 of schedule 2 stand as printed.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I would like to move amendments on sheet 7771 as a whole.

The CHAIRMAN: There are a number of amendments in different parts of the running sheet on sheet 7771. We have not dealt with amendments (4) and (5), which we probably need to deal with separately.

by leave—I move amendments (4) and (5) on sheet 771 together.

(4) Schedule 1, item 28, page 13 (lines 11 to 32), to be opposed.

(5) Schedule 1, items 30 to 39, page 14 (line 1) to page 15 (line 18), to be opposed.

In relation to these amendments, I just want to go to the overall position again. What the government is seeking to do is ensure that there are realistic time frames for the negotiation of greenfield agreements. They are seeking to ensure that negotiations do not delay or jeopardise investment in major projects, and they are seeking to provide for the interests of employees to be covered by such agreement that they are protected. So I again want to say that I do not think the bill achieves these objectives; and our amendments, the Labor Party amendments, would achieve these objectives in what I believe is a more fair and equitable manner.

In relation to greenfield agreements, the panel made four recommendations. The first recommendation, No. 27, was that good faith bargaining requirements apply to the negotiations of greenfield agreements. The second recommendation, No. 28, was that employers intending to negotiate a greenfield agreement take all reasonable steps to notify all unions with eligibility to represent relevant employees. And the third recommendation, No. 29, was that section 240 of the act should be available to be utilised to resolve disputes over greenfield agreement negotiations. The fourth recommendation was that, when an impasse in negotiations is reached, when a specified time period has elapsed and when conciliation by the commission has failed, the commission may conduct last offer arbitration upon application by a party on its own motion.

Those were the overall recommendations that were put by the expert panel. Labor, in our amendments, go closer to dealing with these issues than the coalition's amendments do. The fourth recommendation was for a last offer arbitration model. That is a different model than has been agreed in this country. We have never used a last offer arbitration model, but we believe there is a role for arbitration in relation to these greenfield agreements because it would provide more certainty to investors, more certainty to employers and more certainty to unions who are in that bargaining process. And I think it would give more incentive to actually bargain with good faith than the proposals that have been put forward by the opposition.

The opposition proposals would mean that there can be a fig leaf of bargaining in good faith. Then, at the end of that period or close to the end of that period, the employers do not need to do anything—they do not need to bargain—and they can take what they want the commission to deal with. They take it to the commission. So there is a far better proposition being put by Labor on this issue.

I want to go back to the explanatory memorandum on the government's bill. In the explanatory memorandum it talks a lot about certainty of wage costs; it talks about the costs of bargaining over a period of time, without coming to some conclusion. I will put this to the minister again, because she did not answer it last time. Is the minister aware of any greenfield agreements that have not been implemented because of delays by the unions?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I refer to the regulatory impact statement

In the regulatory impact statement, the department made a reasonable estimate, based on evidence provided by several stakeholders during the 2012 Fair Work Act review, that greenfields negotiations are lengthy and onerous. And I can refer you to page 169 of the Fair Work Act review. The regulatory impact statement itself says bringing in a three-month period—albeit I acknowledge we have extended that with the agreement of the crossbenchers to a six-month period—will save $64 million a year in costs and administration and the Office of Best Practice Regulation approved the methodology.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Again, I come back to the question that I asked: are you aware of any greenfield agreement that has not been implemented because of excessive delays by the unions?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, the panel review identified there was a problem. They have identified recommendations. We have looked at the recommendations and we are proposing a solution. You do not agree with our solution. And, as I have said to you, it is a quarter to nine and there is a very good chance we will be here at 10 to 10, but I do not think I can assist you any further. We are not supporting your amendments—that is it.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

That is a bit arrogant when I am asking you a simple question. You can filibuster all you like in your response, but if you do not know the answer just tell me you do not know the answer, but—

Sean Edwards (SA, Liberal Party) Share this | Link to this | Hansard source

Senator Cameron, if you want to verbal the minister choose another way. The minister has given you an answer. If you do not like the answer, rephrase your question.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

With respect, Chair, the minister has not given me an answer. The question is simple and I will ask it again: Minister, do you or the department know of any greenfield agreement—you have got the whole department sitting there beside you—that has been delayed because of unions' intransigence?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, again, you can be as cute as you want in asking the question to try to make the political point that I do not agree with. But if I could refer you to page 169 of your very own report of the panel that was appointed by the now Leader of the Opposition Bill Shorten. At paragraph 3, it states:

Many employers argued that the provisions enabling greenfields agreements under the FW Act are not working efficiently. The MBA, for example, submits that unions are using their position of power to seek leverage on matters not related to development of the agreement, and that start-up agreements on major projects are non-existent without union consent. VECCI submits that unions ‘hijack’ the agreement making process. The Minerals Council of Australia submits that negotiations with unions are lengthy, tortuous and onerous. Business SA submits that unions make inflated claims in greenfields negotiations. The Institute of Public Affairs submits that requiring negotiations with unions is inconsistent with other agreements under the FW Act, and jeopardises projects.

There is the evidence, at page 169, of your own review.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

That is not evidence. They are assertions from employer organisations. I would like you to answer: are you aware or are any of the departmental officers aware, of any instance where a greenfield agreement has been held up by the intransigence of the unions in the bargaining process? It might be tough. It might be extended negotiations. Give us the evidence. Tell us the evidence, so we can make a judgement in relation to the issues that you want passed here. If there has been none, why don't you just be honest about it and say there has been none?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, you yourself have moved amendments to this particular part of the bill, which would indicate that you yourself believe that there is an issue that needs to be rectified. Again, I refer you to the evidence at page 169 of your own review.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

At the moment, we are dealing specifically with item (4) and item (5). At item (4), we are opposing the government amendments, which in effect create an employer greenfields agreement at the conclusion of the notified negotiating period. I have heard the arguments that this is not an employer agreement. But the reality is that on issues where there is no agreement, and it could be on issues that have never been negotiated, we could end up with a document—not an agreement but a document—going to the Fair Work Commission and that document ending up being the basis of the terms and conditions at the workplace.

We are also opposing, in item (5), the government amendments which are consequential in opposing the amendments which create an employer greenfields agreement. So what the crossbench need to understand now is that this is crunch time in terms of these employer agreements. I am not convinced, and Labor is not convinced, from the arguments that we have heard from the minister that this does not give an unfair advantage to the employer. The employer is already in a very powerful position; an extremely powerful position. The employer will be given further industrial relations weapons against unions trying to negotiate a fair and reasonable outcome. They only have to wait out the time period and then get the agreement to the commission. The commission, provided it deals with some of the basic issues, will tick off on this agreement. That is basically a denial of longstanding industrial rights in this country. It is a breach, in my view, of international conventions that we have signed off on. It is not allowing negotiations to take place free of government interference.

Once you start agreeing on these issues now, there will be big problems down the track with this government. We know that they want to give more strength and more power to the employer at the expense of employees. This is not, as the minister argues, some extra protection for workers. It is basically forcing an employer agreement down the throat of the unions who represent the workers who will be engaged in that job. That is the bottom line. This is not about a proper arbitration where people can argue their points; this is simply about the imposition of an employer set of clauses against the unions who represent the workers who will be engaged on that project. That is why in four and five we are opposing the government's amendments.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

You are relitigating—and it is your right to relitigate—a number of the issues that you and I have already canvassed in previous amendments on this bill, but for the purposes of the record I will again state that your assertions that the changes put forward by the government will allow an employer to make an agreement without union involvement are incorrect. By virtue of what a greenfields agreement is it is not allowed to be done.

A greenfields agreement is an agreement, with no employees but a prospective workforce, between an employer and a union or unions. With all due respect, you can say it as many times as you like tonight in an effort to try to put some merit into the amendments that you have only put forward at the very last minute today. I note that the amendments that we are currently looking at you had not proposed three weeks ago when we had an extensive second reading debate on this issue. I only received them late this morning.

You continue to say that our amendments will allow an employer-only agreement. That is incorrect. It is wrong. The bill requires an employer to negotiate in good faith with the union or unions that are able to represent the industrial interests of the employees who are going to be covered by the agreement. The Fair Work Commission itself must note in its decision to approve the agreement that the agreement covers the union or unions that were bargaining representatives for the agreement. The changes that we are referring to maintain a role for unions in negotiating greenfields agreements.

You also have made assertions—again, that you have previously made this evening—in relation to the greenfields agreement making process that we are putting forward heavily favouring employers, and again we reject that assertion in its entirety. I again go to the words of the fair work review panel, which I remind the chamber is the review panel which the now Leader of the Opposition, Bill Shorten, himself appointed. They themselves say:

… a significant capacity to frustrate the making of an appropriate greenfields agreement at all or at least in a timely way.

That is what the current framework has, effectively, conferred on the unions such that the current negotiations for greenfield agreements potentially threaten future investment in major projects in Australia.

Again, in terms of what we are proposing tonight, the existing agreement approval rules under the Fair Work Act are retained. The bill also—again, as I have already stated several times tonight in response to the same questions from you—says that, where agreement cannot be reached with the union, the union will be covered by any greenfields agreement approved by the Fair Work Commission to ensure that they can enforce that agreement on behalf of future employees. To the Fair Work Commission—and this is the fundamental difference between what is currently in the act and what we are bringing in—in addition to passing the better-off-overall test, or the BOOT, as it is known, we have added the additional layer that the agreement provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work.

I reject the assertions that you yet again make.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

What is there to prevent an employer from negotiating a greenfield agreement for 170 days or whatever the time frame is and then presenting an entirely different agreement to the Fair Work Commission as long as they have shown it to the union?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

In terms of the agreement that must be given to the union to sign, again, as I have stated on a number of occasions tonight in response to the question which you continue to ask me, the union must be given the reasonable opportunity to sign the agreement that is put to the Fair Work Commission for approval. The union must have seen the agreement. I think that we discussed it previously as well, so you would be aware that the commission is able to upload proposed agreements to its website. In the circumstances that you are referring to—whereby an agreement that the union has not had an opportunity to provide consideration to is put by the employer to the Fair Work Commission as the agreement which they are seeking to have agreed by the commission—I have no doubt that there will be people sitting out there looking at those agreements, looking at what has gone up, and making an application to the Fair Work Commission. So again: the union must have been given reasonable opportunity to sign the agreement that is put to the Fair Work Commission for approval.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

How do you define 'reasonable opportunity' in relation to the bargaining? Is it 'reasonable opportunity' to see the agreement? Is it 'reasonable opportunity' to bargain the agreement? What is 'reasonable opportunity'?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I do not know how you negotiate, but certainly 'reasonable opportunity' depends on the particular facts and circumstances of the bargaining itself. In terms of the concept, it already exists in the agreement making framework of the Fair Work Act. If I could refer you to 220(2)(b), in relation to giving employees a reasonable opportunity to decide whether to approve a proposed termination of an agreement, the intention clearly is that the union would have sufficient time to consider the agreement before it is submitted to the Fair Work Commission for approval—bearing in mind that the good faith bargaining provisions, which currently do not apply under your legislation, are being brought into the greenfields process under this legislation. If you are saying that an employer is not negotiating in good faith, then you would be aware that the union could go to the commission for an order that they do negotiate in good faith.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

They cannot do that if it is the end of the negotiation period, can they, Minister? If you have come to the end of that negotiation period you cannot then take anything to the commission, can you?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

When you come to the end of the negotiation period—so you have decided to go down the option of the six-month time frame—the release valve—you will basically have the opportunity, if you have not been able to come to an agreement, to go to the Fair Work Commission and the Fair Work Commission will look at the agreement as we have discussed. Alternatively, you could continue to negotiate with the unions if you so choose or, if the Fair Work Commission does not approve the agreement, you could start the clock again.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

How does that then provide certainty for investors?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

We appear to be going around in circles in terms of the certainty for investors. You do not agree with what we are trying to do, and what we are trying to do is make the position in relation to greenfield agreements a stronger position. Currently, there is no provision to bargain in good faith. We are bringing that into the greenfield process. Currently, there is no requirement for the Fair Work Commission to say, 'We will approve this agreement if it is in the public interest.' We are bringing that in. Currently, there is no requirement for the Fair Work Commission to look at the agreement and say, 'We are going to ensure that it complies with the relevant industry standards.' You cannot disagree that that is not a good thing in this process. In the event that you cannot reach agreement at the end of the six-month period, we now have a release valve—that is all this does—where the employer can say, 'We will go to the Fair Work Commission', and the Fair Work Commission is given that opportunity to have a look at the agreement and endorse it.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

The Fair Work Commission can have a look at the agreement and can endorse the agreement. Is that a take it or leave it for the Fair Work Commission in relation to the clauses that may not have been agreed to between the employer and the unions?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, again, there is a fundamental misunderstanding of the way an agreement process actually works. You will go into a negotiation between a minimum of two parties. If there is more than one union, then there will be unions and there will be more than two parties. I would hope that for the majority of times you will actually reach agreement and you will be able to proceed with the project and employees will be able to come and work on the project. But in the event that you cannot reach agreement, there is a mechanism that after that six-month period a proposed agreement can go to the Fair Work Commission and the Fair Work Commission would say, 'You've agreed to 95 of these conditions', or whatever you wanted to agree to, and then it would have a look at the agreement that has now been submitted for approval. It would factor it against all of the criteria that we have been through tonight, quite literally ad nauseam, including—and for me this is the key difference, and I am sure for employees out there this is the key difference—that it is not just the better off overall test that is currently reflected in your legislation. We require the Fair Work Commission to look at prevailing pay and conditions as an agreement approval criterion. That is a good thing for employees.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

But Minister, what I think everyone needs to understand is that the good faith bargaining provisions being brought into the process is one thing but to then remove international rights and international obligations in terms of ILO conventions in terms of bargaining is another thing. You talk about going through the process but my experience and I think the experience of many union officials is that we have gone through lengthy processes with employers, not just in the building and construction industry but I have been there as well, but you can go through lengthy negotiating processes, you can have some key issues outstanding and the employer then puts to the unions, 'I want a package; if you don't agree with everything, we don't agree with anything.' That is not an uncommon position in bargaining in this country. Is that good faith bargaining?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, there is a specific section of the Fair Work Act that deals with good faith bargaining. Everything around good faith bargaining is set out in that particular section of the Fair Work Act.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I have asked you a specific question. If the employer basically says, 'Take it or leave it; if you don't accept, then it's off the table,' I want to know the government's view on whether that is good faith bargaining.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Whether that happens under the current position or under the position that is being adopted, the commission would assess that behaviour against the provisions of the Fair Work Act that deal with good faith bargaining and would then itself make a determination.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

When you say 'a determination', they will arbitrate the outcome, will they? How will that be dealt with? There are outstanding issues between the parties and the employer puts forward what they want in terms of an agreement. So what rights do the union have about the outstanding issues that they do not have agreement on once it goes to the commission?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, Senator Cameron, the union is able to make submissions to the commission including in relation to prevailing standards. You appear to want to assert to the Senate that the unions are being locked out of the process. That is just fundamentally incorrect and does not reflect the changes that are being made.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I am not talking about prevailing standards; I am talking about a bargaining process where the unions have certain claims that are outstanding up to the six-month period and then the employer unilaterally determines that the matter should go to the commission. What happens with those outstanding issues when the employer's position goes to the commission? Is it the employer's position that will prevail?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I am not sure whether I understand you correctly. You have gone into a negotiation. You have decided that you will set the clock at six months. At the end of the six months you have agreed certain things but you have been unable to reach agreement on other things. You go to the Fair Work Commission and you submit the agreement, and we have agreed the agreement is an agreement the union has already been given a reasonable opportunity to sign, so that agreement is put to the Fair Work Commission for approval. The parties obviously can continue to bargain until the agreement is made but then the Fair Work Commission, as I have tried to explain to you, has approval criteria by which it will then look at the agreement and determine whether or not it should or should not approve the agreement. It is quite a simple process.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Correct me if I am wrong here. So the commission can either approve or not approve the agreement, as you describe it, but the agreement is not an agreement. It may contain some elements of agreement but other elements of the employer's claim on the unions for the agreement. Is that correct?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I think we need to understand that the 2012 Labor panel that the current Leader of the Opposition put together identifiedthat unions had acted in a way—and I have referred you to page 169 of your report—in a way that it justified this recommendation. In the event that the unions want to challenge an agreement that has been approved, as you appear to be referring to, they can challenge the approval of a greenfield agreement under the Fair Work Act and this position does not change with these amendments.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

So you are saying the existing act provides for contestability on the greenfield agreement. Are you saying that that is in the act at the moment? And then you have what you are proposing here. How do those two positions interrelate?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Senator Cameron, we appear to be going around and around in circles. That is fine. But appeal rights—and you and I have discussed this at length this evening—are not affected by the amendments that we are putting in place.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

Does the commission either approve or disapprove the 'agreement'—and I use that word in inverted commas because it is not an agreement—that the employer puts forward that I assume would contain some agreed aspects but also some aspects of the employer's claim on the union? How does that work? Does the commission have arbitration rights? Do the unions have a right to go in and argue their position? How does it work?

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Again, we are going around and around in circles. We have discussed this on a number of occasions tonight. We have, as we have discussed, an employer and a union or unions that enter into negotiations for a greenfield agreement. The employer determines when they will start the clock on the six months. If the six months come up and the employer and the union or unions have bargained in good faith but for whatever reason have been unable to reach an agreement, as we have discussed, the employer has the opportunity to put an agreement to the Fair Work Commission for approval. It is merely a proposed agreement. The union must have been given a reasonable opportunity to sign the agreement that is being put to the Fair Work Commission for approval. The very clear intention is that the union would have had sufficient time to consider the agreement before it was submitted to the Fair Work Commission for approval.

When the Fair Work Commission is looking at the proposed agreement—I understand what you are saying; it is not an agreement yet but still a proposed agreement—one of the fundamental differences between what you legislated and what we hope to legislate tonight is that it has to look at the agreement in terms of the new requirement for an approval test and it needs to ensure that the agreement is in line with the prevailing standards in the relevant industry or equivalent work. So the Fair Work Commission itself, the independent umpire, will be the one determining this.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I will indicate a number of things here. If the crossbenchers are considering accepting this, they should know that this is probably one of the most significant changes to bargaining that this country has seen since Work Choices. It will stop what is an international right for unions to collectively bargain. Collective bargaining will be stopped after six months and what will happen is that either an agreement that the employer wants will go to the commission or there will be some combination of agreed positions and employer positions that go to the commission for the commission to either agree or disagree to.

I do not believe the argument that the unions can make submissions to the commission is of any value, because the proposition is that the commission either endorses or does not endorse the 'agreement' that comes to the commission. So the commission will not be considering a bargained agreement. It will not be the outcome of good faith bargaining. It will be what the employer, after a period of six months, determines should be put to the commission and then the commission will arbitrate that. It is an employer agreement. It is not a bargained agreement; it is the employer's agreement.

All the arguments we have heard about how you will save costs if you get to this position are so much nonsense. We know that the mining industry provided the details for the department to create the explanatory memorandum. The explanatory memorandum is so full of holes. The explanatory memorandum talks about there being no evidence. At page xii of the explanatory memorandum it says:

Based on significant anecdotal evidence and qualitative statements provided to the Review Panel, as a rough estimate, five months is used as a hypothetical time period for protracted greenfields agreement negotiations for major resource and energy projects.

It has all been so picked out of the air.

The environmental issues have to be factored in on this as well. The minister has been absolutely incapable of providing any evidence that the unions have stopped effective bargaining or stopped an agreement for a greenfields site. Why would the unions want to do that? The unions would want their members to be there earning a quid, getting the project built. There seems to be this view from the coalition that all the unions want to do is delay. I can tell you: the unions' members do not want a delay. The Labor Party does not want a delay and neither do the unions. I do not know a union anywhere—and I was a union official for 27 years and I negotiated plenty of construction industry agreements. We did not want a delay; we wanted the agreement in place so that our members could get the benefit of the agreement. But it is never an agreement at any price; it is always an agreement based on decent bargaining and proper give and take. This stops the bargaining and stops the give and take.

If you go to page XIV of the regulation impact statement, it talks about how projects could be delayed by problems with prolonged negotiations—could be; no evidence before us that there have been any delays. It says:

… there is no available data on the frequency of delays on which to cost the regulatory reduction.

It goes on to say it could delay and then comes up with this argument that the cost offset has been based on delays for 50 of the 100 projects over 10 years. This is Disneyland stuff. This is some economist in the department sitting down trying to come up with some argument to back up a political argument. I think the economist has failed miserably.

We want agreements to be negotiated without delay. We want them to be negotiated with fairness in mind. We want the same as the government: realistic time frames, no delays and in the interest of employees. However, those tests are not met by the government's legislation, not met by the bill.

They go on to talk about a delay of costs of $1.25 million per project for eight public and private sector projects—made-up figures; no basis to this at all other than being asserted on the basis of some economic jiggery-pokery in the department.

Then they go on to talk about administrative costs in the agreement; that it costs employers money to negotiate. It costs every employer to negotiate. That is the price of democracy in this country. So to argue that you could now put a price on the democratic processes and implementing our obligations under international conventions, I think, is a bit rich. Sure, bargaining is lengthy and onerous at times but, if the principle is that you can cut out people's rights to bargain, stop collective bargaining in this country on the basis of lengthy and onerous bargaining then every industry, every union and every worker needs to be aware that this principle could be applied to them as well. If you apply this in the building and construction industry, you could apply it elsewhere and then we know where that leads: to a diminution of rights across the country—exactly what this government has always wanted.

In relation to the analysis that has been done on the cost of bargaining, I say that the cost of bargaining is the cost of democracy in this country. That is what bargaining is about: democratic rights for workers to be able to collectively bargain. So there are costs involved in that.

The problem we have is that the coalition are prepared to sacrifice workers' rights on the basis of an argument that it would provide certainty to investors. The only certainty investors would get would be the certainty of the proposals that we are putting forward, and that is that there is an arbitrated outcome. We take a view that it is a different arbitrated outcome than the panel but we agree with the principle of an arbitrated outcome. The coalition are not arguing for an arbitrated outcome; they are arguing, as I understand it, that an 'agreement' goes up. That agreement contains the wish list of the employers and then it is a take it or leave it on that agreement. That is the position: a take it or leave it. So the act of bargaining is pushed aside. The democratic rights of workers are pushed aside, because the unions are representing their members and the workers will be coming on the job. The issue that is arbitrated or determined—or whatever the word is that the minister wants to use—is a yes or no on the employer's wish list that could not be bargained in good faith at the enterprise level.

So we take the view that, by agreeing, if the crossbench agrees to this, then a greenfields workplace determination means the destruction of basic rights and bargaining rights for unions in this county, especially in this area. We would be worried about the implications of this flowing into other areas because, if it is simply about investment, I am sure you can get people arguing about delays and bargaining if we want to invest in the clearing industry, the catering industry, the manufacturing industry—industries across the country—and then people would be denied on this principle of bargaining rights.

This is a very important issue. It is an issue that we should not take lightly. If we start going down the path of denying the trade union movement in this country their right to bargain on behalf of their members, that is a slippery slope. We know that slippery slope has already been reached at one stage, through Work Choices. We know where the government wants to go. We know that they want to move in a whole range of areas to diminish the capacity for unions to negotiate effectively on behalf of their members. The International Monetary Fund has looked at this issue of the decline of the unions' bargaining capacity and what it means, and in their analysis it is a transfer of profits from the employees to the employers. That is what is starting to happen, and the gap between the rich and the poor blows out.

So these are big issues that we are dealing with. It is not like the rhetoric that the minister has been arguing—that it is simply putting another phase of protections in and another phase of good-faith bargaining in. Let's be clear what this is about. It is about an attack on the capacity of unions in this country to bargain collectively, because the employer will have the upper hand. The employer will not need to give any concessions on key issues in the bargaining process over the six months. It can argue that it is still bargaining in good faith but it is never going to bargain on wages, on key conditions or on anything that improves the rights of workers. What can end up happening here is that the determination would be made on what might have happened elsewhere. The chances of unions improving wages and conditions are diminished because that is not what the determination will do. The determination will not determine improvements on contested areas; it will at the very best give what is around the place or maybe the lowest of what is around in terms of agreements.

This is a very dangerous position we are in. The crossbenchers should be aware of the seriousness of what they are about to do in terms of a decision on this because a decision to support the government's position on workplace determinations is a fundamental denial of collective bargaining in this country. It is a reinforcement of employer prerogative in this country. It will not mean an end to uncertainty, because the minister conceded herself that this could go on for six months again, and then another six months. So the fundamental principle of certainty that the minister has argued is so much nonsense. It is not going to provide certainty. The certainty will come from the opposition's amendments that will provide an arbitrated outcome on the outstanding issues. That will force the employers to bargain on the issues or end up getting arbitrated outcomes. We should reject the government's position and we should support the opposition's position. (Time expired)

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Could I just make some very short responses in relation to what Senator Cameron has stated? It is a gross mischaracterisation to suggest that unions will lose their collective bargaining rights. All this is doing is providing—as we have talked about for a number of hours tonight—the relief valve where there has been an impasse for six months.

Senator Cameron, in all of his arguments, again conveniently ignores that Labor's handpicked reviewers—and it was the current Leader of the Opposition, Bill Shorten, who put this review panel together and chose the people to review Labor's legislation—that have recommended this course of action. The independent Productivity Commission has recommended this solution to the existing problem. To give a sense of practicality: how long would a reasonable person think it should take for an employer and a union to agree to conditions that, under what we propose to do, are actually better off than the award for a brand new project that is going to create real jobs for real people?

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I have listened very carefully to the debate that has gone on for many hours, and nothing that has been said tonight has swayed me from the original position that the Australian Greens took about these amendments—that these amendments are going to put all of the cards in the hands of the employer and are vastly unfair to employees in greenfields agreements.

The questions from Senator Cameron to the minister have been honing in on the critical issue of what happens when this negotiation reaches the end of a period of time, whether it is three months or six months. It is very clear from listening to the minister's answers that what happens then is that there is no arbitration and no fair process. All that occurs at that stage is that the Fair Work Commission has the opportunity to sign off on what the employer has put on the table. Essentially, there is nothing that would stop an employer—if they want to—from just sitting out that period of time; to sit there and put something forward—and there might be some parts of it that the union agrees on but some very serious parts that they do not agree on. There is nothing to stop them from sitting back and saying, 'It is take it or leave it,' and just wait for the time to tick down to the end of what was three months and—with the amendments that have been passed tonight—what is now a six-month period. Rather than being a relief valve at the end of those six months, I actually think that those six months are really six months of a ticking time bomb. You just sit there and you wait for the time to tick down to the end of the six months, then whatever the employer wants in that agreement gets passed and whatever is in the interest of the workers does not get consideration.

The minister was telling us that, yes, unions have an opportunity to make submissions to the Fair Work Commission, but the Fair Work Commission under these amendments would not be able to arbitrate. This question has been asked of the minister in many different ways this evening, and she has avoided answering it. But it is clear that the Fair Work Commission under these amendments would not have the ability to arbitrate. There would be no fair arbitration of what may be a very unfair agreement. It would end up being 'take it or leave it'; it would end up giving a very unfair advantage to the employers.

I feel no comfort at all that the Fair Work Commission, in making its decision as to whether to take it or leave it—to say yes, or, much less likely, to say no—would take into account prevailing pay and conditions. What are the prevailing pay and conditions for what in many cases in a greenfields agreement might be something quite new? You would only need to get one of these agreements through. You would only need to have one employer sit out that six months, to put in something that is vastly unfair for the workers, and for the Fair Work Commission to say yes to that. You would only need to have one of those get up, and that would then set the standard for what the prevailing pay and conditions would be. That would be the standard for the next greenfields agreement.

You would never be in a situation of being able to improve the pay and conditions in similar situations in the future. It would end up being a race to the bottom in eroding workers' conditions and eroding workers' pay and eroding the power of workers to be able to work collectively to improve their conditions. It would strike at the ability to have a truly negotiated set of agreements. Having this time period in place would mean that all of the cards would be in the hands of the employers. It would give them an unfair advantage. It would tip the balance too far towards the interests of the employers. The Greens are resolute that this would be a very bad move for Australian society. It would be a very bad move for the workers in our economy and it would end up meaning that we have an even more unfair workplace relations system than we currently have.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

On a scheduling matter: we finish at 9.50. We would be seeking to divide on this part of the bill, after which we would not be seeking any further divisions. If we could wind up in that time, we would work towards that goal.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

Whilst I appreciate those comments, you can understand that we would like to see this bill finished tonight, and that might be at 9.55. But in the event that, unfortunately, we do get to 9.50 tonight and the bill has not been completed, we will have reached a hard mark. On that basis, I move:

That progress be reported.

Question agreed to.

Progress reported.

I move:

That the committee have leave to sit again at a later hour.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the motion be agreed to.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

by leave—I move:

That the Senate continue to sit until it has finally considered the Fair Work Amendment Bill 2014, or a motion for the adjournment is moved by a minister, whichever is the earlier.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

Can I just be clear: the opposition had indicated to the chamber that we were prepared to facilitate resolution of this matter by the adjournment time, which is now. We were then told, as I understood it, that this would continue for a short period of time. The motion moved by the minister is not for a short period of time. Perhaps the motion should be consistent—

Debate interrupted.