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

We are considering the Fair Work Amendment Bill 2014, as amended.

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

I understand that we are dealing with opposition amendments (4) and (5) on sheet 7771—that is, schedule 1, items 28 and 30 to 39. I understand that we are happy for that to go to a vote.

The CHAIRMAN: The question is that items 28 and 30 to 39 of schedule 1 stand as printed.

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

by leave—I move amendments (1) and (2) on sheet 7577:

(1) Schedule 1, item 33, page 14 (lines 23 and 24), omit “the prevailing pay and conditions within the relevant industry for equivalent work”, substitute “the pay and conditions for work performed in similar circumstances, but takes into account the particular circumstances and needs of the employees and the employers who will be covered by the agreement and the enterprise to which the agreement relates”.

(2) Schedule 1, item 33, page 14 (lines 25 to 27), omit the note.

I am moving to replace the words 'consistent with the prevailing pay and conditions within the relevant industry' with 'for work performed in similar circumstances, but takes into account the particular circumstances and needs of the employees and the employers' and the enterprise. My amendments allow enterprise agreements to take into account local conditions, local labour force conditions and local economic conditions—in other words a new site, a new EBA. I commend the amendments.

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

I thank Senator Day for his constructive contribution to this debate, and in particular for his engagement with the government on the important reforms in the Fair Work Amendment Bill. As canvassed in the debate yesterday, the purpose of the new prevailing pay and conditions criteria in the bill is to build an extra employee protection for greenfields agreements approved by the Fair Work Commission under the new optional six-month process. The new prevailing standards requirement is in addition to the existing agreement approval tests, including that the employees must be better off overall than they would have been under the award.

The test start will be applied by the independent Fair Work Commission and will assist in assuring the expeditious resolution of greenfields agreements that provide new employment opportunities. We believe that clause 33 is drafted to meet these objectives. It requires the Fair Work Commission to be satisfied that the agreement, considered on an overall basis, provides the pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work. There is also a note that the Fair Work Commission may have regard to the relevant geographical area. This makes clear that the Fair Work Commission has flexibility to exercise its expert judgement and discretion in considering the relevant pay and conditions standard.

The government has carefully considered Senator Day's proposed amendments to this test and, while we believe that the sentiment behind the proposed amendment is meritorious, the government at this point has made the decision not to support the proposed amendments.

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

I do not think it would come as a surprise to Senator Day that Labor opposes these amendments. On the record, can I thank Senator Day for his indulgence last night—we had a long night and I know he gave way to me late in the evening; I sort of got carried away and left Senator Day without an opportunity to speak. I acknowledge that. Senator Day, I must say that the proposition you put up is not acceptable to Labor. The proposition that the government puts up is not quite as bad but it is every bit as bad in relation to the impediment it places before unions to negotiate better pay and conditions than those that apply in particular areas. If you simply had the situation that the government is proposing in this bill, if you only looked at the prevailing pay and conditions, then you would never be in a position to improve wages and conditions anywhere in the country—they would basically be frozen at the existing position. Your position is worse than that. It says that you have to take into account the particular circumstances and needs of the employees, employers and enterprises to which the agreement relates as well as the pay and conditions for work performed in similar circumstances. In our view, this is a recipe for pushing wages and conditions backwards. It is not consistent with allowing proper bargaining under the act. On that basis, we oppose the amendments.

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

Firstly, I thank you for your acknowledgement from last night, Senator. I believe that these amendments are very important for Australia's competitiveness. They correct an error in the government's bill, which would lock in a one-size-fits-all enterprise arrangement regardless of whether the new enterprise or project is in Berri, in Burnie, in Broome or anywhere else.

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Or Bunbury or Busselton?

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

Or Bunbury. We have already had a B in WA!

Why are these amendments to the provisions of the bill concerning greenfields projects so important? In my discussions with my colleagues, many acknowledged that there is a major problem in job creation regarding greenfields sites around Australia. Here are some data proving that Senator Cameron is wrong and that Australia does have a problem with the conditions for greenfields projects. First, the data shows that the costs of greenfields exploration are now six times higher than they are for brownfields exploration. In 2014-15, exploration expenditure per metre drilled on new greenfield deposits was nearly $700 per metre compared with just one $110 per metre on existing brownfields deposits. The cost differential between greenfields and brownfields exploration has never been higher. The differential or the gap between greenfields projects and brownfields projects is getting higher and higher. In 2014, greenfield exploration accounted for just one-quarter of total metres drilled.

What is all this saying? It is saying that we have a problem with greenfields projects, where, suddenly, you will have to adopt an EBA from somewhere else across Australia. That EBA will not take into account local circumstances. Like I say, whether it is Busselton, Bunbury or Broome in WA; Berri in South Australia; Bendigo in Victoria—

Peter Whish-Wilson (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Or Ballarat?

Bob Day (SA, Family First Party) Share this | Link to this | Hansard source

Or Ballarat in Victoria. We can keep alliterating all afternoon, if we like, but I think that I have made my point.

I think that this is really, really important. I think that the government have missed the boat on this. I do not think that they quite realise just how important it is. When you set up a new enterprise or a new project on a new greenfields site, the unique circumstances of a particular geographical region are so important, whether it is a canning factory or a petrochemical plant in Shepparton—and I will start with the S names, if you like! My home state of South Australia does not have the cost of living and cost base of a project in, say, Western Sydney. New projects will be locked out of my home state of South Australia. New greenfields projects will not be able to compete and they will not be able to set up, because they will be locked into an industry-wide EBA, which they will have to pick off the shelf from somewhere else. Yes, you can make submissions to the Fair Work Commission and start hacking away at an existing enterprise bargaining agreement from somewhere else, but we all know what happens there. My proposal is that, for a new site, you will start with a new EBA. I thank the minister and the shadow minister for their contributions. I commend my amendment to the Senate.

The CHAIRMAN: The question is that amendments (1) and (2) on sheet 7577 be agreed to.

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

I move opposition amendment (6) on sheet 7771 revised:

(6) Schedule 1, page 16 (after line 15), after item 48, insert:

48A After subsection 240(3)

  Insert:

FWC may deal with greenfields agreement dispute

  (3A) The FWC may deal with a dispute about a proposed single-enterprise agreement that is a greenfields agreement on its own initiative if the FWC is satisfied that it is in the public interest to do so.

48B Before subsection 240(4)

  Insert:

Bargaining representatives may agree that FWC can arbitrate

This is about expanding conciliation in relation to greenfields agreements. We heard much from the minister yesterday about bringing certain aspects of the Fair Work Act into the greenfields agreement making and why that was a good thing. If that is the principle then the principle of bringing the aspects of section 240 of the Fair Work Act, which provides a bargaining representative may apply to the Fair Work Commission to deal with a dispute by way of conciliation, should also be in this bill. It would allow the Fair Work Commission to deal with a dispute by way of conciliation on its own initiative, if the Fair Work Commission is satisfied that it is in the public interest to do so. It keeps that greenfields agreement negotiations consistent with the broader act. It was an argument that the opposition put forcefully yesterday. So, on that basis, I would think the government should accept this as part of the principle. Yesterday, they argued about bringing these issues into line.

Minister, I want to go to some of the issues that you raised yesterday in your responses. You indicated that good faith bargaining provisions had been extended to greenfields agreements and you argued that that would improve accountability in the negotiation process. You then spoke about past practice. You said:

… one would anticipate based on past practice that the majority of agreements are going to be negotiated …

That is page 94 of Hansard. You say that in the majority of cases the employer and the relevant unions will be able to reach an agreement. Minister, isn't it the case that presently all greenfields agreements are negotiated, not merely a majority?

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

Senator Cameron, it is implicit in the greenfields process that all agreements are negotiated. Yes, that is the process.

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

So, when you spoke about the majority yesterday, that was just how it was presented. But you have clarified there that all the agreements are negotiated, not merely a majority. Presently, do you agree that all greenfields agreements are negotiated, not just a majority? None are excluded?

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

No, Senator Cameron. I think you misunderstood what I said last night. As we went through it last night, you have greenfields agreements, you have an employer and you have a union or unions. Under the greenfields process, they get together and negotiate an agreeme

Many agreements are actually agreed by the employer and the union or unions. In some cases, there will not be an agreement. We are implementing the relief valve—that is, going to the Fair Work Commission as the individual umpire. So I think there was just a slight misunderstanding in terms of what I said last night.

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

Minister, it is the statement you made last night that I am seeking clarification on—not what you have just said. You said last night that one would anticipate that, based on past practice, the majority of agreements are going to be negotiated. You used the word 'majority'. You then said later:

… in the majority of cases the employer and the relevant union or unions will be able to reach an agreement.

Do you accept that, based on past practice, all greenfield agreements—not the majority but all of them—have been negotiated? It is a simple, factual position.

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

Again, I think it is just the way that you have interpreted what I said last night. It is implicit within the greenfields process that there is negotiation. Whether or not there is an agreement is up to the parties. If there is an agreement, that is good. If there is not an agreement, then they can utilise the relief valve and go to the Fair Work Commission.

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

Minister, thanks for the answer. Last night, again, you said that the employer then has the optional process of commencing the six-month period by notifying the union. Do you anticipate that any negotiations would take place before a notified negotiating period commences? There is no requirement to negotiate before a notified negotiation period commences, is there?

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

I personally am not able to anticipate what various parties will do. But, as you will be aware, what we are doing with this particular amendment, as we discussed at length last night, is bringing into the greenfields provisions what is currently not there—that is, the good faith bargaining provisions. So you would expect parties to bargain in good faith, and where they cannot reach an agreement the employer is able to utilise this process should the employer wish to.

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

Hansard recorded you last night as saying:

… 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.

That is on page 96 of the Hansard. Minister, there is clearly an incentive for the union to reach agreement with the employer. If they do not, then the employer can lodge an agreement that contains whatever they would like—that is, whatever the employer would like. What is the incentive for the employer to reach agreement with the union within the six-month period?

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

) ( ): Again, you and I canvassed this for several hours last night. The evidence I gave last night will be the evidence that I re-give you now. I disagree with the fact that the employer can present any agreement that they like. I made it very clear last night that the union must be given a reasonable opportunity to sign the agreement that is put to the Fair Work Commission for approval. If the union has not seen the agreement, then the Fair Work Commission will not be able to approve that particular agreement.

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

Minister, you simply have not answered the question. The question I have put is: there are obvious incentives for the unions to reach agreement but there is no incentive that you have indicated for employers to reach agreement with the union within the six months; so what is the incentive, under the process that you are proposing, for the employer to reach agreement with the union within the six-month period?

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

Given that the employer has a project which the employer wants to start, given that the employer is going to have a body of employees waiting to become people who are actually employed, given that the employer is the one assuming all of the risk in relation to this project and given that the employer is probably going to have international financiers who are saying, 'Unless you can get this agreement in place, we may not be able to provide the finance,' I am assuming, Senator Cameron, that there is going to be great incentive for the employer to come to an agreement with the union or unions.

In any event, as I have consistently stated and I will state again, one of the good things that we are doing in relation to this part of the act—which the former government failed to do—is that we are bringing in the good faith bargaining provisions so that employers and employees have to negotiate in good faith. But the other addition to this part of the act—which, again, Labor failed to do in their legislation—is that we are now bringing in, as part of the approval criteria at item 33, prevailing pay and conditions as one of the criteria for the approval of the agreement. Currently, as you would be aware, it is the better off overall test, and you are compared to the relevant award. We are saying, 'If you are going to submit an agreement to the commission for approval, that test is now prevailing pay and conditions as an approval criterion,' and everyone knows, Senator Cameron, that they are going to be higher.

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

Again, I just say, Minister, that the incentive for the employees and the unions—that is, the union representing the employees—is clear. The incentive for the employer, as you outlined, probably gives a bit of strength to the argument that we have been putting, and that is that the incentive for the employer would be to hang on and not make any concessions until the employer gets the agreement that it wants to put to the commission after the six-month period. If you have, as you have indicated, prevailing pay and conditions as the benchmark, that means that workers would not be in a position through that bargaining process to improve on the prevailing pay and conditions. Is that not so?

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

That is not correct. They will have an opportunity, but again I go to the point that the award applies currently under your system; under our system it is prevailing pay and conditions. There is a fundamental difference. I also refer you to the review panel that the now Leader of the Opposition Bill Shorten himself handpicked to review your legislation. One of the reasons that we are standing here today is that there are a number of recommendations made by that review panel—your review panel, your handpicked people. We canvassed this last night: the reason that the government is considering this greenfields relief valve measure is that an issue has been clearly identified that certain unions have in some circumstances frustrated greenfields agreement processes. Again, we canvassed this last night, and at that time I read from the findings of Labor's own handpicked reviewers of the Fair Work Act, where they recalled evidence and submissions that some unions had hijacked the greenfields processes, that greenfields negotiations were lengthy, torturous and onerous and that within itself jeopardises projects.

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

Minister, I do not know why you will not go to the point and answer the question. It is okay to give us all the rhetorical flourishes that you have in your speaking notes, but the reality is that I am asking a simple question, and that is: what is the incentive for the employer to reach agreement with the union within the six-month period, when clearly, on what you outlined early in your answer, it is probably a better incentive for them, if it is all about cost pressures, to resist any improvements to pay and conditions. Thanks very much for advising me that there is a difference between an award and prevailing pay and conditions. I think most people do understand that, but that does not go to the question—what is the incentive for the employer to reach agreement with the union within the six-month period? Doesn't it mean that, if the determination is made on prevailing pay and conditions, then the unions cannot negotiate improvements in pay and conditions in the areas that are under disagreement for prospective employees—so prevailing pay and conditions become a cap?

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

Similarly the question to the minister is: where is the incentive for the employer to do anything other? If they cannot reach agreement with the union, they will just sit there and wait out the six months. Those six months may not be much time at all in the whole timeframe of development of the industry. They will sit there and wait and, if no negotiation is needed after that, you can see that is how it will play out.

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

Unfortunately, Senator Rice, that comment shows a complete lack of understanding of how business works. In any event, the mere fact is that we are bringing in the good-faith bargaining provisions. I can only say that so many times. If you go to that section of the act, and it is quite a lengthy section of the act, you can read what good-faith bargaining is—maybe you have not had an opportunity to read that—and that will outline for you step by step exactly what the employer and the relevant union or unions are required to do by way of good-faith bargaining. In the event that they do not bargain in good faith, one of the parties can go to the Fair Work Commission and they are able to seek what is known as a bargaining order from the commission.

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

This is a very important issue, and I am going to persevere with the question. Given that there is clearly an incentive for the unions to reach agreement with the employer—if they do not reach agreement and the employer can lodge an agreement that contains the issues that employer wants imposed on workers. What is the incentive for the employer to reach agreement with the union within the six-month period? Do you not agree that by maintaining the prevailing pay and conditions there is no capacity under your bargaining approach for unions to increase and improve wages and conditions for employees who could be covered by that greenfield agreement?

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

No, I do not.

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

Minister, could you explain: if it is the prevailing pay and conditions that then apply, how could that be an improvement on pay and conditions for workers in that project, when compared to other projects?

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

Senator Cameron, again I do worry that you do not understand what prevailing pay and conditions are, as compared to an award. You keep talking about a cap. In fact, it is the other way around—it is not a cap; it is actually a floor.

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

So, Minister, if it is a floor, my understanding of a floor is something that you build on—something you stand on to build on. If this is the floor, how then, under your legislation, can a union improve on the prevailing pay and conditions for prospective employees?

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

A union can do so, by negotiating sensibly; otherwise, you would not be in the position to which you are currently alluding.

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

Last night, you also indicated on page 96 of Hansardthat an employer can:

… continue to negotiate ad infinitum if they want to …

Could you outline the circumstances where an employer could negotiate ad infinitum?

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

That reflects the current situation, whereby an employer or a union can continue to negotiate. That is why we are putting in the relief valve. It is so that there is an opportunity at the end of that period of time to go to the Fair Work Commission and have them as the independent umpire—as I described them last night and I think is agreed in the chamber—have a look at the agreement within the approval criteria.

But I also said last night that you do not have to go to the commission. If you wanted to, you could continue negotiations. Again, from an employer's perspective, you have a major project. You have all sorts of things that are hinging off this major project, let alone the fact that you have a body of people who you want to become employees who are working and accruing entitlements. The system currently enables people to negotiate 'ad infinitum', to quote that phrase, and that is why we are putting in the relief valve.

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

I am cognisant of the time, so I will not pursue this, but I must indicate that I think your responses do not shine any light on these issues at all. Let me try again. On page 93 of Hansard last night you said:

… 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 … ensures that the unions have sufficient time to consider the agreement … to the Fair Work Commission.

And on page 96 you said:

… the union must have been given the reasonable opportunity to consider agreeing to the document that is filed with the Fair Work Commission.

I would like to confirm that there is nothing in the bill that says the agreement which has been under discussion for six months is required to be the same document that is filed with the Fair Work Commission, as long as the union has been provided a reasonable opportunity to consider agreeing to the document. I would also like to clarify what happens if the unions disagree with any element that is filed with the Fair Work Commission. What is open to the unions?

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

I hope that you understand that negotiations are processes where parties go back and forth between one another. They agree on some things; they do not agree on other things. They might have agreed on something but then decide to change that. That is the whole point of a negotiation. However, to ensure that an agreement is ultimately reached so that the project can get underway and to ensure that the employees, as I said last night, are able to become paid employees and accrue entitlements and have all the rights and conditions that we in this chamber have, we are merely putting in a relief valve.

Again, I confirm the evidence that I gave last night. The union must have been given a reasonable opportunity to sign the agreement that is put to the Fair Work Commission for approval. The union must have seen that agreement. As we went through last night, if an agreement that the union has not seen is put to the commission, the commission will upload that proposed agreement onto its website. You can only imagine, Senator Cameron, I am sure, what the reaction of the union would be if it saw on the commission's website an agreement that it had not had the opportunity to comment on.

In any event, I go back to when the Fair Work Commission is looking at this proposed agreement. In terms of the approval criteria, we have ensured that whilst under your legislation the award is the relevant standard—the better-off-overall standard—we are increasing that. This is of benefit to the proposed employees. The approval criteria now include the prevailing standards and conditions within the industry. Employees will be better off as a result of that.

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

Employees may not be better off if they are not in a position to improve over and above the prevailing terms and conditions, and we have canvassed that. That is clearly a deficiency in the bill. It is not so much a deficiency; I think it is a deliberate position in the bill that would mean that workers are not able to improve their wages and conditions over a period of time.

I want to get back to another issue. Last night you did not answer my question about whether the union could take the employer to the Fair Work Commission to seek a bargaining order at the end of the notified negotiating period. In the ordinary course of events, a bargaining order can be granted by the Fair Work Commission if a bargaining representative has not met the good faith bargaining requirement. If a bargaining representative has breached a bargaining order, will the Fair Work Ombudsman be able to take legal action against the bargaining representative after the notified negotiating period has concluded?

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

Again, I think this goes potentially to a fundamental misunderstanding of what your legislation currently allows people to do and what we, through our amendments to your legislation, are going to enable people to do. You keep attacking good faith bargaining as if it were something bad or deficient. You and I went through this last night, but I am happy to go through it again. It is your right to ask questions, and I appreciate your asking me questions so I can have the opportunity to clarify this yet again with you.

Under the current greenfields agreement-making framework that your government put into place—I think you would acknowledge this, because it is the law—employers and unions have no incentive to bargain for greenfields agreements in good faith. The reason for that is the good faith bargaining rules do not apply at all to these agreements. When you legislated you did not include good faith bargaining for greenfield agreements. What then happens is that the Fair Work Commission has no formal capacity to resolve disputes during greenfield negotiations. For a number of years you had the opportunity to fix this. You had a panel which said, 'Fix it!', but you chose not to.

I am struggling with the fact that every time you stand up you are almost advocating a position that is opposing the extension of the good faith bargaining provisions to this part of the act. What the government is doing via this amendment is ensuring that the good faith bargaining rules apply to negotiations for all single-enterprise greenfield agreements, as is set out in the Fair Work Act. As I stated to Senator Rice, the act says that, where the good faith bargaining rules are not complied with, parties will be able to access bargaining orders and the Fair Work Commission bargaining assistance for the first time. Currently, they cannot do that. They will be able to do it under the amendment that we are bringing in. That is a good thing.

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

Minister, I do not understand why you would need to verbal anyone in relation to this matter. The question being asked is simple. To stand up and to verbal me and the Labor Party, saying that we do not support good faith bargaining, I do not think does you much credit. In reality, the issue is that the problem is not the good faith bargaining principle; the problem is the interaction of good faith bargaining with your flawed process and your bill that would impede proper bargaining and would impede unions having a fair go in the negotiations. Your principle provides a benefit and an added support to the employer over the union bargaining group. We support good faith bargaining—I want to make that clear.

We have now traversed these issues for some period of time. I understand there are other amendments. I would like to get through our amendments, but I would like to place on record that we support good faith bargaining. We think good faith bargaining is impeded by the bad process you have introduced in this bill.

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

The committee is considering opposition amendment (6) on sheet 7771 revised. The question is that the amendment be agreed to.

Question negatived.

Glenn Lazarus (Queensland, Independent) Share this | Link to this | Hansard source

I move:

(1) Page 3 (after line 11), after clause 3, insert:

4 Review of the operation of amendments

(1) The Minister must cause an independent review of the operation of the amendments made by Part 5 of Schedule 1 to be undertaken and completed within 2 years after the commencement of that Part.

(2) The review must consider:

  (a) the effect of the amendments made by Part 5 of Schedule 1; and

  (b) any other related matter that the Minister specifies.

(3) The person who undertakes the review must give the Minister a written report of the review.

(4) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sittings days of receiving it.

My amendment puts in place an important safeguard which will require the minister, regardless of who is in power, to undertake an independent review of the workability of the six-month period installed to negotiate greenfield agreements. The review must be undertaken and completed within two years of the legislation taking effect. The person who undertakes the review must give the minister a written report, which must be tabled in each house of parliament within 15 days of the minister receiving it. My amendment puts in place an obligation on the government of the day to work with all stakeholders involved in the negotiation of greenfield agreements to review the success of the six-month time frame.

While I appreciate the opposition has put forward very late in the day a proposal for arbitration in relation to greenfield agreements, my consultations with unions and businesses indicate that my amendment will work and, importantly, will provide the safeguard to ensure that the system is reviewed within a relatively short time to enable adjustments to be made to the legislation in future if required. My amendment ensures there is a balanced approach to greenfield negotiations and that the process of enterprise bargaining is appropriately respected and supported.

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

I thank Senator Lazarus for the way in which he has negotiated with me during this process. I have spoken with him about this amendment and, indeed, with a number of the crossbenchers. Senator Lazarus indicated that he felt there was a desire for a review of the greenfield provisions after two years. Certainly, after having discussions with Senator Lazarus and having considered the position, the government will be supporting Senator Lazarus's amendment.

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

The opposition will not be supporting this amendment from Senator Lazarus. We understand where Senator Lazarus is coming from in relation to this amendment which says to us that Senator Lazarus has concerns about the operation of the bill before the parliament. If Senator Lazarus had no concern about this bill, he would not be looking for a review of the operation of the amendments. My view is that this is well intended, but in reality if you have concerns about the operation of the bill, Senator Lazarus, you should not be supporting the bill today. That is the bottom line.

You have put forward a proposition and negotiated with the minister, as I understand, but really what does it do? The minute the minister causes an independent review to take place, the review considers the effect of the amendments and any other matter the minister specifies—who knows what that may be; I am not sure. Then the person who undertakes the review provides a written report to the minister and the minister causes a copy of the report to be tabled in each house of parliament within 15 days of receiving it. Big deal! What does that do? It does nothing, absolutely nothing. Fine, you do a deal with the minister. That is up to you, but if you have concerns about the operation of the bill, the time to deal with it is now.

Do not support the bill

Do not put up a proposition that allows the minister to determine issues in a report that she receives and simply tables with no compulsion to do anything other than table the report. I think that this amendment is well-intentioned, but if you have problems, Senator Lazarus, do not support the bill, because this amendment does not fix the major problems in this bill.

Glenn Lazarus (Queensland, Independent) Share this | Link to this | Hansard source

I will be supporting the bill, but I also believe that this is a really, really important issue. I think that my amendment should be adopted with other bills as well because if you do something over and over and over again and expect a different result that is the first sign of madness. I am happy with the bill, but I would also like to think that the government of the day would have the scope to be able to change it if it is not working.

Question negatived.

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

I move opposition amendment (7) on sheet 7771:

(7) Schedule 1, item 50, page 17 (lines 5 to 14), omit paragraph 255A(1)(d), substitute:

  (d) the following provisions do not apply in relation to the agreement at any time after the end of the notified negotiation period:

     (i) sections 229 and 230 (which deal with bargaining orders);

     (ii) sections 234 and 235 (which deal with serious breach declarations); and

This amendment goes to the issue of the Fair Work Commission declining to make a determination for any reason. This amendment would ensure that the rules around good faith bargaining and conciliation continue to apply. Given what the minister said about the importance of good faith bargaining, this is an example of us supporting good faith bargaining. If the minister really supports it, she would adopt this amendment.

Question negatived.

by leave—I move opposition amendments (1), (2), (8) and (9) on sheet 7771:

(1) Schedule 1, page 11 (after line 6), after item 20, insert:

20A Section 12

  Insert:

  greenfields workplace determination: see subsection 271B(2).

(2) Schedule 1, page 11 (after line 10), after item 21, insert:

21A Section 12 (paragraph (c) of the definition of workplace determination)

  Omit "determination.", substitute "determination; or".

21B Section 12 (definition of workplace determination)

  At the end of the definition, add:

  (d) a greenfields workplace determination.

21C At the end of section 171

  Add:

Note: A greenfields workplace determination may be made in specified circumstances under Division 4A of Part 2-5 if the bargaining representatives for a proposed enterprise agreement that is a greenfields agreement are unable to reach agreement.

(8) Schedule 1, page 17 (after line 18), after item 50, insert:

50A Section 258

  After:

(b) after the end of the post-declaration negotiating period, the bargaining representatives for the agreement have not settled the matters that were at issue during bargaining for the agreement.

  Insert:

Division 4A deals with greenfields workplace determinations. Bargaining representatives for a proposed single-enterprise agreement that is a greenfields agreement may apply to the FWC for such a determination if they are unable to reach agreement on the terms that should be included in the agreement.

(9) Schedule 1, Part 5, page 17 (after line 33), at the end of the Part, add:

52A After Division 4 of Part 2-5

  Insert:

Division 4A—Greenfields workplace determinations

271B Applications for greenfields workplace determination

Application of this section

(1) This section applies if:

  (a) a proposed single-enterprise agreement is a greenfields agreement; and

  (b) there has been a notified negotiation period for the agreement; and

(c) the notified negotiation period ends; and

  (d) one or more of the bargaining representatives for the agreement are unable to reach agreement on the terms that should be included in the agreement.

Bargaining representative may apply for greenfields workplace determination

(2) A bargaining representative for the agreement may apply to the FWC for a determination (a greenfields workplace determination).

(3) An application for a greenfields workplace determination must specify the following:

  (a) the terms that the bargaining representatives concerned have, at the time of the application, agreed should be included in the agreement;

  (b) the matters at issue at the time of the application;

(c) the employers that will be covered by the determination;

  (d) the employees who will be covered by the determination;

(e) each employee organisation that is a bargaining representative of those employees.

271C When the FWC must make a greenfields workplace determination

(1) If:

  (a) an application for a greenfields workplace determination has been made; and

  (b) the FWC is satisfied that:

     (i) the bargaining representatives for the proposed agreement are genuinely unable to reach agreement on the terms that should be included in the agreement; and

     (ii) there is no reasonable prospect of agreement being reached; and

     (iii) the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

     (iv) the bargaining representatives that are employee organisations that (taken as a group) are entitled to represent the industrial interests of a majority of the employees who will be covered by the agreement, in relation to work to be performed under the agreement; and

     (v) the bargaining representative who made the application has exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement; and

     (vi) it is in the public interest to make the determination;

the FWC must make a greenfields workplace determination as quickly as possible.

Note: The FWC must be constituted by a Full Bench to make a greenfields workplace determination (see subsection 616(4)).

(2) In deciding whether or not the bargaining representatives have exhausted all other reasonable alternatives to reach agreement on the terms that should be included in the agreement, the FWC may take into account any matter the FWC considers relevant, including whether the FWC has provided assistance under section 240 in relation to the agreement.

271D Terms etc. of a greenfields workplace determination

Basic rule

(1) A greenfields workplace determination must comply with subsection (4) and include:

  (a) the terms set out in subsections (2) and (3); and

  (b) the core terms set out in section 272; and

(c) the mandatory terms set out in section 273.

Note: For the factors that the FWC must take into account in deciding the terms of the determination, see section 275.

Agreed terms

(2) The determination must include the agreed terms (see subsection 274(4)) for the determination.

Terms dealing with the matters at issue

(3) The determination must include the terms that the FWC considers deal with the matters that were still at issue at the end of the notified negotiation period.

Coverage

(4) The determination must be expressed to cover:

  (a) each employer that would have been covered by the proposed single-enterprise agreement that is a greenfields agreement; and

  (b) the employees who would have been covered by that agreement; and

(c) each employee organisation (if any) that was a bargaining representative of those employees.

271E No other terms

     A greenfields workplace determination must not include any terms other than those required by subsection 271D(1).

52B Subsection 272(2)

  Repeal the subsection, substitute:

(2) The determination must include a term specifying a date as the determination's nominal expiry date, which must not be more than:

  (a) for a greenfields workplace determination—2 years after the date on which the determination comes into operation; or

  (b) for a workplace determination other than a greenfields workplace determination—4 years after the date on which the determination comes into operation.

52C At the end of section 274

  Add:

Agreed term for a greenfields workplace determination

(4) An agreed term for a greenfields workplace determination is a term that the bargaining representatives for the proposed single-enterprise agreement that is a greenfields agreement had, at the end of the notified negotiation period, agreed should be included in the agreement.

Note: The determination must include an agreed term (see subsection 271D(2)).

52D Paragraph 275(b)

  After "low-paid workplace determination", insert "or a greenfields workplace determination".

52E Paragraph 275(c)

  Omit "other than a low-paid workplace determination", substitute "other than a determination covered by paragraph (b)".

52F After paragraph 275(c)

  Insert:

  (ca) for a greenfields workplace determination—whether the determination, on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions within the relevant industry for equivalent work;

52G Paragraph 275(e)

  Repeal the paragraph, substitute:

     (e) for a greenfields workplace determination—how productivity might be maximised in the enterprise concerned;

     (ea) for a workplace determination other than a greenfields workplace determination—how productivity might be improved in the enterprise or enterprises concerned;

These amendments cover really important issues that we are raising. These amendments go to certainty.

The minister has spoken much about certainty and the need for investors to have certainty. But the minister herself has conceded that there would be no certainty, because an employer can continue to negotiate ad infinitum. There are appeal processes in place and there are many impediments to certainty. The proposition we put here is about ensuring certainty through the creation of a greenfields workplace determination. I will not go into all the details, given the time, but these are important amendments in relation to providing real certainty for investors. On that basis, I would seek the support of the Senate.

Question negatived.

The CHAIRMAN: The question is that the bill, as amended, be agreed to.

Bill, as amended, agreed to.

Bill reported with an amendment; report adopted.