Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I have a question for the Minister representing the Minister for Employment and Workplace Relations. Last night, when I circulated an amendment to the NACC Bill before we moved to the Committee of the Whole, you cried wolf about not having adequate time to even consider it. You said:

Well, Senator Lambie, I don't think people just dump amendments on people and then expect them to vote for them. We will not be supporting the amendment. I'm reading this amendment for the first time myself.

My amendment was one page and dealt with one issue. The government's amendments were circulated at 6.23 tonight. They're nine pages long. My question is simple: why are you not giving us adequate time to make informed decisions about how these changes will actually affect the people of Australia?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As Senator Lambie would know, the amendments that have been circulated on behalf of the government deal with matters that have been well traversed in the public debate, especially over the last few days. They are a result of the discussions that the government has had with Senator Pocock. On that basis, I seek leave to move all items on sheet PV124 together.

Leave granted.

I move:

(1) Clause 2, page 5 (at the end of the table), add:

(2) Schedule 1, item 371, page 86 (line 21), omit "relating to", substitute "that the President considers might relate to".

(3) Schedule 1, item 371, page 86 (line 28), omit "relating to", substitute "that the President considers might relate to".

(4) Schedule 1, item 371, page 87 (line 5), omit "relating to", substitute "that the President considers might relate to".

(5) Schedule 1, item 371, page 87 (line 11), omit "relating to", substitute "that the President considers might relate to".

(6) Schedule 1, item 371, page 87 (line 17), omit "relating to", substitute "that the President considers might relate to".

(7) Schedule 1, item 371, page 87 (after line 22), after subsection 617(10), insert:

President's considerations

(10A) For the purposes of subsections (6), (7), (8), (9) and (10), if the President considers that an equal remuneration order, determination or modern award might relate to the Care and Community Sector, it does not matter if the President considers that the equal remuneration order, determination or modern award might also relate to another sector.

(8) Schedule 1, item 372, page 88 (before line 1), before section 617A, insert:

617AA Full Bench and Expert Panel with identical membership

(1) This section applies if a Full Bench and an Expert Panel consist of the same FWC Members.

(2) In performing its functions or exercising its powers, the Full Bench is not limited by:

(a) the functions or powers of the Expert Panel; or

(b) the purposes for which the Expert Panel was constituted.

(3) In performing its functions or exercising its powers, the Expert Panel is not limited by the functions or powers of the Full Bench.

(4) Without limiting subsection (2) or (3), a reference in this section to performing a function or exercising a power includes a reference to the following:

(a) making a determination or modern award under subsection 157(1);

(b) making a determination under subsection 157(2);

(c) making an equal remuneration order under section 302;

(d) performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards).

(5) This section is enacted for the avoidance of doubt.

(9) Schedule 1, item 437, page 118 (line 24), omit "After Part 6-4C", substitute "Before Part 6-5".

(10) Schedule 1, item 437, page 119 (line 1), omit "Part 6-4D", substitute "Part 6-4E".

(11) Schedule 1, item 441, page 123 (lines 32 to 33), omit subparagraph 333E(5)(d)(ii), substitute:

(ii) the current contract contains an option for renewal or extension;

(iia) the previous contract contained an option for extension that has been exercised;

(12) Schedule 1, item 463, page 135 (lines 18 to 25), omit subsection 65B(4), substitute:

(4) If a dispute is referred under subsection (3):

(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and

(b) the FWC may deal with the dispute by arbitration in accordance with section 65C.

Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).

(13) Schedule 1, item 463, page 136 (lines 14 to 20), omit paragraphs 65C(1)(c) to (e), substitute:

(e) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee's request under section 65A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;

(14) Schedule 1, item 463, page 136 (after line 26), at the end of subsection 65C(1), add:

Note: An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee's request, and could set out matters that must be included in the response or further response.

(15) Schedule 1, Part 11, page 138 (after line 9), at the end of the Part, add:

Division 5 — Pre gnancy

Fair Work Act 2009

469A Before paragraph 65(1A)(a)

Insert:

(aa) the employee is pregnant;

(16) Schedule 1, page 160 (after line 6), after item 488, insert:

488A Section 12

Insert:

voting request order: see subsections 240A(1) and (2).

(17) Schedule 1, item 506B, page 162 (lines 12 to 16), omit subsection 180A(2), substitute:

(2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:

(a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or

(b) a voting request order permits the employer to make the request.

Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).

(18) Schedule 1, item 511A, page 166 (lines 10 to 13), omit subsection 207A(2), substitute:

(2) An employer must not request under subsection 208(1) that employees approve the variation by voting for it unless:

(a) each employee organisation covered by the enterprise agreement has provided the employer with written agreement to the making of the request; or

(b) a voting request order permits the employer to make the request.

Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).

(19) Schedule 1, page 167 (after line 15), after item 519, insert:

519A At the end of Division 8 of Part 2-4

Add:

Subdivision E — Voting request orders

240A Application to FWC for voting request order

Proposed multi-enterprise agreement

(1) After the notification time for a proposed multi-enterprise agreement, a bargaining representative for the enterprise agreement may apply to the FWC for an order (a voting request order) permitting an employer to make a request under subsection 181(1) that employees approve the enterprise agreement by voting for it if:

(a) each bargaining representative for the enterprise agreement that is an employee organisation has been asked to provide the employer with written agreement to the making of the request; and

(b) one or more of the employee organisations has failed to provide the written agreement.

Variation of multi-enterprise agreement

(2) A person referred to in subsection (3) may apply to the FWC for an order (also a voting request order) permitting an employer to make a request under subsection 208(1) that employees approve a variation of a multi-enterprise agreement by voting for it if:

(a) each employee organisation covered by the enterprise agreement has been asked to provide the employer with written agreement to the making of the request; and

(b) one or more of the employee organisations has failed to provide the written agreement.

(3) The persons are the following:

(a) an employer covered by the enterprise agreement;

(b) an employee organisation covered by the enterprise agreement;

(c) an affected employee for the variation.

240B FWC must make voting request order

The FWC must, on application under subsection 240A(1) or (2), make a voting request order permitting an employer to make a request if the FWC is satisfied that:

(a) for each employee organisation that has failed to provide written agreement to the making of the request, the failure was unreasonable in the circumstances; and

(b) if the request relates to approval of a proposed enterprise agreement—the making of the request by the employer would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.

(20) Schedule 1, page 169 (before line 3), before item 525, insert:

524A Section 12 (definition of prospectiv e award covered employee )

Repeal the definition.

524B Section 12

Insert:

reasonably foreseeable employee for an enterprise agreement: see subsection 193(5).

(21) Schedule 1, item 526, page 170 (lines 6 and 7), omit the item, substitute:

526 Subsection 193(1)

Omit "prospective award covered", substitute "reasonably foreseeable".

526A At the end of subsection 193(1)

Add:

Note 1: Reasonably foreseeable employee is defined in subsection (5).

Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).

526B Subsection 193(3)

Omit "prospective award covered", substitute "reasonably foreseeable".

526C Subsection 193(5) (heading)

Repeal the heading, substitute:

Reasonably foreseeable employee

526D Subsection 193(5)

Omit "prospective award covered", substitute "reasonably foreseeable".

(22) Schedule 1, item 528, page 170 (lines 17 and 18), omit "who is covered by the agreement at the test time", substitute "concerned".

(23) Schedule 1, item 528, page 170 (lines 26 to 28), omit subsection 193A(2A).

(24) Schedule 1, item 528, page 171 (line 20), at the end of subsection 193A(6), add "In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.".

(25) Schedule 1, item 528, page 171 (after line 20), after subsection 193A(6), insert:

(6A) The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:

(a) the employer or employers that are covered by the agreement;

(b) if the agreement is not a greenfields agreement—the award covered employees for the agreement;

(c) in any case—a bargaining representative for the agreement.

(26) Schedule 1, item 531, page 172 (line 24), at the end of subsection 211(4A), add:

; and (c) the words "if the agreement is not a greenfields agreement—" in paragraph (6A)(b) were omitted; and

(d) the words "in any case—a bargaining representative for the agreement" in paragraph (6A)(c) were omitted and the words "the employee organisation or employee organisations that are covered by the agreement" were substituted.

(27) Schedule 1, item 534, page 174 (line 5), omit "or (3)".

(28) Schedule 1, item 534, page 174 (line 26) to page 175 (line 4), omit subsection 227A(3).

(29) Schedule 1, item 534, page 176 (line 3), at the end of subsection 227B(2), add:

; and (g) the words "if the agreement is not a greenfields agreement—" in paragraph 193A(6A)(b) were omitted; and

(h) the words "in any case—a bargaining representative for the agreement" in paragraph 193A(6A)(c) were omitted and the words "the employee organisation or employee organisations that are covered by the agreement" were substituted.

(30) Schedule 1, item 534, page 176 (line 21), omit paragraph 227B(4)(b), substitute:

(b) if another day is specified in the amendment (which may be a day before the amendment is made)—that other day.

(31) Schedule 1, item 534, page 176 (after line 21), at the end of section 227B, add:

(5) The FWC must specify a day before the amendment is made for the purposes of paragraph (4)(b) if the FWC considers that it is necessary for the amendment to operate from the earlier day to address the concern to which the amendment relates.

(32) Schedule 1, item 534, page 177 (after line 13), at the end of Division 7A, add:

227E No creation of liability to pay pecuniary penalty for past conduct

Application of this section

(1) This section applies if an amendment of an enterprise agreement made under paragraph 227B(3)(b) has a retrospective effect because it comes into operation on a day before the day on which the amendment is made.

No creation of liability to pay pecuniary penalty for past conduct

(2) If:

(a) a person engaged in conduct before the amendment was made; and

(b) but for the retrospective effect of the amendment, the conduct would not have contravened a term of the enterprise agreement;

a court must not order a person to pay a pecuniary penalty under Division 2 of Part 4-1 in relation to the conduct, on the grounds that the conduct contravened a term of an enterprise agreement.

Note: This section does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4-1.

(33) Schedule 1, Part 16, page 177 (after line 13), at the end of the Part, add:

534A Subsection 546(1) (note)

Omit "Note", substitute "Note 1".

534B At the end of subsection 546(1)

Add:

Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).

(34) Schedule 1, page 187 (after line 18), after item 552, insert:

552A After paragraph 275(c)

Insert:

(ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;

(35) Schedule 1, item 584, page 195 (lines 1 to 8), to be opposed.

(36) Schedule 1, item 597, page 202 (line 8), omit "paragraph 243(1)(c)", substitute "paragraphs 243(1)(c) and (2A)(a)".

(37) Schedule 1, item 597, page 202 (line 14), at the end of section 216AC, add:

; (d) as if all of the words in paragraph 243(2A)(b) were replaced with the words "the affected employees are, at the time the application for approval of the variation is being considered, employees in an industry, occupation or sector declared by the Minister under subsection (2B)".

(38) Schedule 1, item 611, page 208 (line 3), omit the heading to subsection 243(1), substitute:

Supported bargaining authorisation main case

(39) Schedule 1, item 611, page 208 (after line 23), at the end of subsection 243(1), add:

Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).

(40) Schedule 1, item 611, page 208 (after line 32), after subsection 243(2), insert:

Supported bargaining authorisation declared industry etc.

(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:

(a) an application for the authorisation has been made; and

(b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).

Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).

(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.

(41) Schedule 1, item 611, page 209 (before line 8), before subsection 243A(1), insert:

Relationship between this section and section 243

(1A) Section 243 has effect subject to this section.

(42) Schedule 1, item 614, page 210 (lines 3 to 11), omit subsection 244(4), substitute:

(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer's name if the FWC is satisfied that it is in the public interest to do so, taking into account:

(a) if the employer's employees are in an industry, occupation or sector declared by the Minister under subsection 243(2B)—the declaration; and

(b) if paragraph (a) of this subsection does not apply—the matters set out in paragraph 243(1)(b); and

(c) any other matters the FWC considers appropriate.

(4A) Despite subsection (4), the FWC must not vary the authorisation if subsection 243A(1) (employees covered by single-enterprise agreement that has not passed nominal expiry date) would prevent the FWC from making a supported bargaining authorisation specifying the employees.

(43) Schedule 1, item 629, page 216 (line 25), omit "met.", substitute "met; and".

(44) Schedule 1, item 629, page 216 (after line 25), at the end of paragraph 216DC(1)(b), add:

(v) if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.

(1AA) If:

(a) the application for approval of the variation was made by an employee organisation under section 216DB; and

(b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved.

(45) Schedule 1, item 629, page 216 (lines 28 and 29), omit paragraph 216DC(1A)(a), substitute:

(a) the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and

(46) Schedule 1, item 629, page 218 (after line 4), after subsection 216DC(3A), insert:

(3AB) If:

(a) the application for approval of the variation was made by an employee organisation under section 216DB; and

(b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met, unless the contrary is proved.

Calculating number of employees

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):

(a) employee has its ordinary meaning; and

(b) subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and

(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d) associated entities of the employer are taken to be one entity.

(47) Schedule 1, item 629, page 218 (line 18), omit "6 months", substitute "9 months".

(48) Schedule 1, item 633A, page 222 (line 10), omit "met.", substitute "met; and".

(49) Schedule 1, item 633A, page 222 (after line 10), at the end of paragraph 249(1)(b), add:

(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.

(1AA) If:

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.

(50) Schedule 1, item 633A, page 222 (line 20), omit paragraph 249(1B)(a), substitute:

(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and

(51) Schedule 1, item 634A, page 223 (after line 33), after subsection 249(3A), insert:

(3AB) If:

(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and

(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;

it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.

Calculating number of employees

(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):

(a) employee has its ordinary meaning; and

(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and

(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and

(d) associated entities of the employer are taken to be one entity.

(52) Schedule 1, item 636A, page 224 (line 30), omit "6 months", substitute "9 months".

(53) Schedule 1, item 637, page 225 (lines 14 to 23), omit subsection 251(2), substitute:

(2) The FWC must vary the authorisation to remove the employer's name if:

(a) an application has been made under subsection (1); and

(b) the requirements of either subsection (2A) or (2B) are met.

(2A) The requirements of this subsection are met if the FWC is satisfied that:

(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and

(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation.

(2B) The requirements of this subsection are met if:

(a) the application was made by a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates; and

(b) the FWC is satisfied that:

(i) the employer (the relevant employer) whose name is proposed to be removed employed fewer than 50 employees at the time that the application was made; and

(ii) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the application; and

(iii) the employees (the relevant employees) who are employed by the relevant employer and that would be covered by the proposed enterprise agreement to which the authorisation relates have, on request by the bargaining representative, approved the removal of the relevant employer's name by voting for the removal; and

(iv) there are no reasonable grounds for believing that the removal of the relevant employer's name has not been genuinely approved by the relevant employees.

Note: A person must not coerce another person to exercise a workplace right in a particular way (see section 343).

(2C) Without limiting subparagraph (2B)(b)(iii), the bargaining representative may request that the relevant employees vote by ballot or by an electronic method.

(2D) For the purposes of subparagraph (2B)(b)(iii), the relevant employees are taken to have approved the removal of the employer's name if:

(a) at least 50% of the relevant employees cast a vote; and

(b) more than 50% of the valid votes were votes approving the removal.

(54) Schedule 1, item 638, page 226 (line 21), omit "added.", substitute "added; and".

(55) Schedule 1, item 638, page 226 (after line 21), at the end of paragraph 251(4)(b), add:

(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added—the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.

(4A) If:

(a) the application for approval of the variation was made by a bargaining representative under paragraph (3)(b) of this section; and

(b) the new employer employed 50 employees or more at the time that the application was made; and

(c) the requirements of subsection 249(2) do not apply to the new employer;

then the following matters are presumed, unless the contrary is proved:

(d) that the requirements of subsection 249(3) would continue to be met if the new employer's name were added;

(e) that, for the purposes of subparagraph (4)(b)(v) of this section, the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.

(56) Schedule 1, item 638, page 226 (line 25), omit paragraph 251(5)(a), substitute:

(a) the new employer employed at least 20 employees at the time that the application for the variation was made; and

(57) Schedule 1, item 638, page 227 (after line 1), after subsection 251(5), insert:

(5A) For the purposes of calculating the number of employees referred to in subparagraph (2B)(b)(i) or paragraph (4A)(b) or (5)(a):

(a) employee has its ordinary meaning; and

(b) subject to paragraph (c), all employees employed by the new employer at the time that the application for the variation was made are to be counted; and

(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the new employer; and

(d) associated entities of the new employer are taken to be one entity.

(58) Schedule 1, item 638, page 227 (line 31), omit "6 months", substitute "9 months".

(59) Schedule 1, item 651B, page 238 (lines 11 to 14), omit paragraph 23B(1)(a), substitute:

(a) the work is done, onsite, by an employee in the industry of:

(i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On-site Award 2020 as in force at the applicable time; or

(ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On-site Award 2020 as in force at the applicable time; and

(60) Schedule 1, item 651B, page 238 (lines 16 to 19), omit subparagraph 23B(1)(b)(i).

(61) Schedule 1, item 651B, page 239 (line 27), at the end of paragraph 23B(1)(b), add:

; (xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;

(xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On-site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000) to generate electricity.

(62) Schedule 1, item 660, page 256 (line 7), omit "and 4", substitute ", 4 and 5".

(63) Schedule 1, item 667, page 266 (lines 12 to 15), to be opposed.

(64) Schedule 1, item 667A, page 266 (lines 16 to 26), omit the item, substitute:

667A Paragraph 7(9)(a)

Omit "firefighting duties made up a substantial portion", substitute "the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion".

(65) Schedule 1, item 667B, page 267 (line 1), omit "an employee who is covered by subparagraph (a)(i)", substitute "for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15)—the employee".

(66) Schedule 1, page 267 (after line 7), after item 668, insert:

668A After subsection 7(9)

Insert:

(9A) If a declaration under subsection (9B) is in force, then when determining for the purposes of paragraph 7(9)(a) whether firefighting or related duties made up a not insubstantial portion of the duties of an employee of the Australian Capital Territory, being an employee:

(a) covered by paragraph 5(11)(e) or (ea) as a result of being a volunteer member (however described) of a body referred to in either of those paragraphs; or

(b) specified in a declaration under subsection 5(15);

the relevant authority must:

(c) by writing, request the declared ACT firefighting advisory committee to give the relevant authority written advice in relation to the matter within a reasonable period specified in the request; and

(d) have regard to any such advice provided within that period.

(9B) If the Chief Minister for the Australian Capital Territory so requests in writing, the Minister may, by legislative instrument, declare that a committee or other body (however described) that is established:

(a) by or under an ACT enactment; or

(b) by a written instrument made by a Minister (including the Chief Minister) of the Australian Capital Territory;

is the declared ACT firefighting advisory committee for the purposes of subsection (9A).

(9C) A reference in subsection (9) or (9A) to the duties of an employee includes, in relation to an employee of the Australian Capital Territory specified in a declaration under subsection 5(15), a reference to the activities to which that subsection applies that were engaged in by the employee.

(67) Schedule 1, item 669, page 267 (lines 8 to 16), omit the item, substitute:

669 Application of amendments

Item 12 of the table in subsection 7(8) of the Safety, Rehabilitation and Compensation Act 1988, as amended by this Part, applies in relation to a decision made under that Act (including a decision on reconsideration or review under Part VI of that Act), after the commencement of this item, in relation to primary site oesophageal cancer sustained by an employee on or after 4 July 2011.

(68) Schedule 1, page 267 (after line 16), at the end of the Schedule, add:

Part 28 — Paid family and domestic violence leave

Division 1 — Main amendments

Fair Work Act 2009

670 After paragraph 536(2)(c)

Insert:

; and (d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.

671 After subsection 536(3)

Insert:

(3A) A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).

Division 2 — Other amendments

Fair Work Act 2009

672 Subsection 539(2) (after table item 34)

Insert:

673 After paragraph 557(2)(p)

Insert:

(paa) section 757BA (which deals with employer obligations in relation to pay slips relating to paid leave to which the person is entitled because of section 757B);

674 Subsection 757B(4)

Repeal the subsection, substitute:

Extended paid family and domestic violence leave provisions

(4) The extended paid family and domestic violence leave provisions are the provisions of Subdivision CA of Division 7 of Part 2-2, and the related provisions identified in subsection (3) of this section, as they apply because of this section.

675 Section 757BA

Repeal the section, substitute:

757BA Employer obligations in relation to pay slips

If an employer gives a person a pay slip relating to paid leave to which the person is entitled because of section 757B, the employer:

(a) must not include on the pay slip any information prescribed by regulations made for the purposes of paragraph 536(2)(c); and

(b) must comply with any requirements prescribed by regulations made for the purposes of paragraph 536(2)(d).

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

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Just moving on, in terms of Senator Lambie's statement to the Senate, I want to preface every single question that is being asked—I will say it by myself, but I'm sure that Senator Lambie, Senator Tyrrell and Senator Roberts will agree. I just want to remind the chamber and, in particular, the minister that the official records of parliamentary debates, which include questions in the Committee of the Whole stage, are a vital source of information when it comes to statutory interpretation. As Senator Lambie has rightly pointed out, at 6.23 pm the government's amendments to the most significant piece of industrial legislation that this place has seen for decades were circulated. One might say the government was treating the Senate with contempt, but that would be for some to say. There is significant uncertainty about how this legislation could be interpreted. Yes, we will be here till 11 pm, because there are so many questions that need to be asked and answered properly for the purposes of statutory interpretation going forward, and we will resume again tomorrow, and it is open-ended, but, due to the significant uncertainty about how this legislation could be interpreted—which, again, one may say, appears to be by deliberate design—it is important that we as a Senate, on behalf of every employer and employee in Australia, get clear and concise answers to provide guidance to those interpreting the government's legislative intent.

In that regard, to be very clear on the Hansard record, I will quote from section 1 5AB of the Acts Interpretation Act 1901 :

(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:

…    …    …

(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;

(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;

(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and

(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record o f debates in the Parliament or either House of the Parliament.

So I say to the Senate chamber that is the way in which I will be approaching each question that I ask.

The questions I ask are being asked on behalf of employers in Australia. This bill will pass the Senate—we know that. Senator Pocock has given the government the vote that it needs. But after the bill passes the Senate, it goes back to the House. It will pass through the House of Representatives. The people of Australia deserve to know that employers are able to properly interpret the legislation and, in particular, the hundreds of questions that are going to be asked in committee stage that, to date, the government and the department either have been unable to or have failed to provide answers to.

In that regard, before I turn to questions, in relation to the amendments that have been circulated by the minister on behalf of the government, can I ask: when were these amendments finalised—on what date and at what time?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The short answer to your question is that the amendments were finalised today. But, as I said in response to Senator Lambie, the amendments all relate to matters that have been in the public arena since at least the weekend, after the government negotiated an outcome with Senator David Pocock. For the benefit of the chamber I'm happy to give a short explanation of what these amendments are.

The government amendments in relation to bargaining include among the factors that the Fair Work Commission must take into account, in deciding which terms to include in a workplace determination, the significance to the employers and employees who will be covered by the workplace determination of any arrangements or benefits in a relevant enterprise agreement.

They authorise the Fair Work Commission to have regard to 'reasonably foreseeable employees', make determinations on views about whether certain working arrangements are reasonably foreseeable and amend an agreement with retrospective effect, if necessary, to address a concern that the agreement does not pass the better off overall test as part of the new reconsideration process.

The amendments provide that employers who employ fewer than 20 employees may not be added to a single-interest employer agreement or authorisation without their agreement.

They provide that the operations and business activities of common-interest employers must be reasonably comparable for the purposes of making or varying a single-interest authorisation or agreement.

They provide that for employers with 50 or more employees the onus is on the employer to establish that it is not a common-interest employer or that its operations and business activities are not reasonably comparable with the other employers.

They provide the Fair Work Commission with discretion to refuse an application by a bargaining representative of an employee to add a new employer to a single-interest employer agreement or authorisation, if the Fair Work Commission is satisfied that on the day it will approve the relevant application less than nine months have passed since the most recent nominal expiry date of an effectively bargained agreement that covered the employer and relevant employees.

They provide that the minister may make a declaration in relation to a particular industry, occupation or sector to facilitate entry into the supported bargaining stream.

They provide that work in the civil construction sector is to be considered general building and construction work, which would mean that work in that sector would not be subject to multi-enterprise bargaining.

They make clear that work in the asphalt industry is not considered to be general building and construction work.

They allow bargaining representatives to apply to the Fair Work Commission for an order permitting an employer to put a multi-enterprise agreement to a vote if satisfied that employee organisations' failure to provide their written agreement is unreasonable.

The amendments also provide for two things in relation to flexible work: firstly, they allow a pregnant employee to request a flexible working arrangement; and, secondly, they clarify the types of orders the Fair Work Commission may make when an employer has not adequately responded to a request for a flexible working arrangement.

In relation to family and domestic violence leave, the amendments insert a new part 28 into the bill, which would make technical amendments in relation to paid family and domestic violence leave to enable regulations to prescribe requirements for payslips in relation to reporting of paid family and domestic violence leave so that it could be recorded on an employee's payslip as, for example, ordinary hours or training.

In relation to the Safety, Rehabilitation and Compensation Act, the amendments omit the prescription of malignant mesothelioma from the bill so that the disease can instead be prescribed by regulations under the Safety, Rehabilitation and Compensation Act 1988.

They also amend subparagraph 7(9)(a) of the Safety, Rehabilitation and Compensation Act to specify that an employee is taken to have been employed as a firefighter if firefighting duties made up a not insubstantial portion of their duties.

Finally, they introduce the ability for the Australian Capital Territory to establish an ACT firefighting advisory committee to assist in the determination of whether firefighting or related duties have made up a not insubstantial portion of the duties for ACT volunteer firefighters covered by the SRC Act.

In short, the amendments the government has now sought leave to move all flow from the negotiation that the government undertook with Senator David Pocock. Each of those amendments has certainly been made public before, and anyone following this debate would be well aware of the terms of those amendments.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

enator CASH (—) (): I note that, in relation to the explanation the minister has just given to the Senate, the minister has just read out the supplementary explanatory memorandum.

Minister, you said the amendments were finalised today. At what time were they finalised? Did you withhold circulation until the start of the committee stage of the debate? I would like the minister or his office—they're listening in—to provide us with an answer as to exactly what time the amendments were finalised. Do the government amendments reflect all the changes announced by Senator Pocock on Sunday 27 November 2022? I'm more than happy for Senator Pocock, should he wish, to answer this question, but I understand that the minister has circulated the amendments. When did Senator Pocock or his office first receive a copy of the draft amendments? Was Senator Pocock or his office asked to provide any feedback on the amendments? Did Senator Pocock or his office provide the feedback on the amendments? When did Senator Pocock or his office receive a final copy of the amendments? Prior to the amendments being circulated in the parliament, as Senator Lambie has stated, at 6.23 pm, did anybody outside the government see the amendments, including members of any union movement in Australia? And, of all the government amendments on sheet PV124, can the minister please identify which amendments were the result of the committee recommendations, which were the result of negotiations with the Australian Greens and which were the result of negotiations with Senator Pocock? I'm happy for you to go through them dot point by dot point, as you just have, and advise, in relation to the dot points you just read out from the supplementary explanatory memorandum, whether they were committee recommendations, Australian Greens recommendations or Senator Pocock's recommendations.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks Senator Cash. Even though I'm a very fast writer and a very good listener, I wasn't able to keep track of the mountain of questions Senator Cash just asked. But what I can tell you is that I'm advised that the amendments were finalised at about 4 pm this afternoon—so, not terribly long before the debate commenced. I'm also advised that Senator Pocock and/or his office have been consulted about the drafting of these amendments and I'm also advised that no parties external to government, whether unions or employer groups, were consulted on the draft amendments.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

[inaudible] amendments that you read out as per pages 2 and 3 of the explanatory memorandum supplementary, can you indicate which ones were committee recommendations that the government adopted, which ones were as a result of discussions with Senator Pocock and which ones were as a result of discussions with the Australian Greens?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm advised—and, again, this has been in the public domain—that the amendment that says that employers who employ fewer than 20 employees must not be added to a single-interest employer agreement or authorisation without their agreement was a recommendation of the Senate inquiry. In fact, I think you were involved in the Senate inquiry, Senator Cash, so you'd be familiar with that. I understand that the amendment in relation to the statutory review was also a recommendation of the Senate inquiry. I don't think it's any secret that most of the amendments have resulted from negotiations with Senator David Pocock. And, again, I don't think it's any secret that amendments in relation to flexible work are a result of negotiations with the Greens.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I want to now turn to the second reading speech to the House given by Minister Burke. In his second reading speech the minister said that 'bargaining at the enterprise level delivers strong productivity benefits and is intended to remain the primary and preferred type of agreement making.' Can the minister therefore guarantee that the percentage of employees covered by an enterprise-level agreement will increase as a result of the bargaining changes?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Cash, as you've said, Minister Burke in the House debate pointed out that the government's strong preference is that individual employers and their workers and relevant unions reach agreements at the enterprise level. We know that that's fallen away under the system that the former government presided over, with the complete collapse of enterprise bargaining, and we think it is likely that the proportion of workplace arrangements governed by single-enterprise agreements would increase as a result of this legislation.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thank you, Minister, for the response to the question. Based on the answer—that you do believe the number of enterprise-level agreements will increase as a result of the government's bargaining changes—does the government see this as a mark of success for the reforms?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I think there would be a number of marks of success of these reforms, such as getting wages moving again, increasing job security, closing the gender pay gap and increasing the proportion of single-enterprise agreements. I don't know that there's necessarily one test of success for this legislation, but, overall, the objective of this legislation and the measures of success are in the name of the bill—secure jobs and better pay.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In looking at the legislation, can the minister take the Senate to those provisions which are intended to ensure that those businesses who have or wish to have an enterprise-level agreement in place won't be compelled to bargain for or otherwise be roped into a multi-employer agreement?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

For starters, of course, for any business or enterprise that is governed by an existing enterprise agreement, obviously that persists. That business would not be, as you would put it, 'roped into' or forced into multi-employer bargaining. In addition, under the legislation, as amended, there is what has been called a nine-month grace period after the expiry of an existing enterprise agreement. It is always open to an individual employer to reach an agreement with their employees. As I've already said, it's the government's preference that that occurs. But we also recognise that there are individual businesses and groups of employees that, for one reason or another—such as simplicity—may choose to go down the multi-employer bargaining path. I can think of many small businesses that wouldn't necessarily have the HR to conduct negotiations or would prefer to not have to do that with their own employees and may choose to effectively sign up to a multi-employer bargain that is generated through negotiation by a peak industry body with unions and workers. But, as I say, pretty much every business has the option of reaching an agreement with their own employees.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Given that, as I said at the outset, the purpose of these questions is to get a very clear guide from the government in relation to what the bill does and doesn't do, thank you for the general answer. Can you now take me to the specific clauses in the bill?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

There's no specific clause in the bill that says, in your words, 'An employer cannot be roped into a multi-employer bargain.' That's because there are many clauses within the bill that provide a range of options for employers and employees to strike a bargain, whether that be at the enterprise level or across multiple employers or multiple enterprises. Just because there isn't a sentence to the effect that you're talking about, it doesn't preclude the range of options that individual enterprises have for reaching agreements with their workforce.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thank you. I now turn to item 636A of the bill, which basically states, at the end of section 250, that the Fair Work Commission may make a single-interest employer authorisation that does not specify particular employees if the Fair Work Commission is satisfied that:

(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and

(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and

(c) on the day that the FWC will make the authorisation, less than 6 months—

in this case, it's six months—

have passed since the most recent nominal expiry date of an agreement—

that is, an agreement for which the parties have effectively bargained. Can the minister confirm what is meant by 'history of effectively bargaining'? I have been asked by multiple employers what the guidance is that's being given by the government in this regard?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Cash. Because we are a government that wants to make our workplace laws as simple as possible for employers, employees and unions, we have, helpfully, set out the answer to your question in the revised explanatory memorandum. It's on page 188, helpfully, under item 636A, being the item that you referred to. We've made it very easy for people to cross-reference against the item of legislation. I'm happy to read that into the Hansard:

For the purposes of new paragraph 250(3)(b),—

which I understand is the one that you're talking about—

an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT). The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to make a single interest employer authorisation that would specify the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under clause 249(1D)(b).

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thank you for confirming that, because that's exactly what I had written in front of me. It now leads to my next line of questioning. Can the minister confirm what the government means by terms and conditions that are 'more than a marginal improvement on those contained in the relevant award'? A number of employers across Australia would like guidance—as I said, statutory interpretation—as to what the government means by 'marginal improvement'.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Cash. As a former industrial relations minister and, I think, a former industrial relations practitioner as a lawyer, you would be well aware that the Fair Work Act, as it stands currently, and which you presided over, does not specify every detail that the Fair Work Commission would need to take into account. That, of course, would be a matter for the Fair Work Commission to determine, just as many matters under the existing legislation which you were the minister for left matters to the discretion of the Fair Work Commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Thank you for that answer, but I hate to tell you that tonight we're actually discussing your legislation, not something that I did or did not do when we were in government. You would recall that this is actually your legislation from the Rudd-Gillard years which you are now amending, because you've decided that it failed Australia and Australians.

I just want to confirm about the answer you've just given: what you've said to the employers of Australia is that the government, other than saying that the act itself does not specify each detail that the Fair Work Commission has to take into account, is actually unable to provide any further guidance. You have not bothered to provide an amendment to set out that guidance so that employers who are negotiating these agreements understand what is meant by 'marginal improvement'.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

TT (—) (): I have to pick you up on one thing there, Senator Cash. When I'm speaking tonight I'm not just speaking to the employers of Australia, I am speaking to the employers and the workers of Australia. Unlike your government, we recognise that there are two different groups involved in a workplace—that is, employers and workers. We think that both of them have interests which need to be met by our workplace relations legislation. But what I can say to the employers and workers of Australia, and the trade unions of Australia who also of course have an important role in our workplace relations system, is that we are leaving a number of matters in this legislation to the discretion of the Fair Work Commission, including the example that you've given, and that is nothing out of the ordinary for the industrial relations legislation of Australia or, in fact, for many other pieces of legislation considered and passed by this parliament.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

You have confirmed that for the employers, the employees and the unions in Australia the matter is being left to the Fair Work Commission, and the government is not providing any further guidance to the Fair Work Commission, the employers, the employees or the employee representatives as to what the government means by marginal improvement, because, again, this document will be utilised by way of statutory interpretation.

Is the intention of the government for the Fair Work Commission to apply a global assessment when determining whether the terms in an enterprise agreement are more than a marginal improvement, given we don't appear to have any further guidance, on those terms set out in the relevant award—that is, consider all of the terms of the agreement as a whole, rather than a line by line assessment, which is the approach that the Fair Work Commission has taken when assessing compliance with the better off overall test?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

What I'm advised is that it would be a global consideration, as to the entire agreement. But I'd also remind you that in the explanatory memorandum—the clause that I read out previously—there was some guidance provided to employers, to employees, to unions and, indeed, to the Fair Work Commission, that what the government means by more than a marginal improvement is more than simply pass the better off overall test.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I think we've now made it even more confusing. What does the government mean by 'has simply more than passed the better off overall test'? Again, can you quantify it in terms of a percentage improvement?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

No, I can't, and that's because under the existing legislation no government has directed the Fair Work Commission as to what better off overall is. That is a matter that is left to the discretion of the Fair Work Commission. Your government and, indeed, former governments that've made provision for the better off overall test have ultimately left that to be a decision of the Fair Work Commission. No previous government has ever said better off overall means five per cent better, 10 per cent better, two per cent better, not one per cent worse. It has been left to the discretion of the commission and that's what we're doing here.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Can the minister guarantee that businesses who can demonstrate a history of bargaining with employees at the enterprise level and who wish to continue to do so will not be roped into multi-employer bargaining because of a rigid and impractical application of the 'history of effectively bargaining test' by the Fair Work Commission?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, I make the point that it is entirely open to an individual employer to reach an agreement with the relevant union and their workers at a single enterprise level. Part of the problem that we've seen, which the government is responding to, is that the bargaining system that we have inherited—as a new government—is so broken that it is either unworkable for employers and their workforce to reach a single enterprise bargain or for one reason or another, involving power imbalances and other factors, that just doesn't happen. It is always open to a single enterprise to reach agreement with their workforce. And, yes, both parties have to agree. That's what a bargain is. If you have an employer who is unreasonably refusing to bargain with their employees, then this legislation does provide other options. Similarly, if you have a group of employees who are unreasonably withholding their consent to bargain, then there are options for employers. That's the balanced system that we're putting in place.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

If I could, I will just, then, go back to item 636A of the bill. As I said, it provides that the Fair Work Commission may make a single-interest employer authorisation that does not specify particular employees if Fair Work is satisfied that—and we've gone through section (b)—the employers and the relevant employees have a history of effectively bargaining. Can the minister guarantee that businesses—again, I need this for statutory interpretation purposes—who can demonstrate a history of bargaining with employees at the enterprise level and who wish to continue to do so will not be roped into multi-employer bargaining because of a rigid and impractical application of a history-of-effectively-bargaining test by the Fair Work Commission, given your comments that: 'The government does not specify each detail the Fair Work Commission needs to take into account'? This is the whole point.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm not entirely sure what the question was there in the end, Senator Cash. All I can say is that I repeat my earlier comments that these are matters for the discretion of the Fair Work Commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I will just go back to the answer that you gave to the previous question in relation to marginal improvement. You said that no government has ever set out a formula by which marginal improvement is measured. What is the metric or metrics you are going to use to measure improvement? What happens if someone enters into an agreement and there's only a marginal improvement but we actually don't know whether or not the employees are now better off because there's no metric other than the BOOT test against which we can actually test it? 'Marginal improvement', on that basis, means 'just slightly tipping over'.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

WATT (—) (): As I've said, Senator Cash, if an employer has a single-interest bargain that is still running and hasn't reached its nominal expiry date, then they can't be roped in. And, when it comes time to bargain again, where an employer can demonstrate, or is likely to have a history of, effective bargaining, then that's what these provisions would apply to. But, again, I feel very repetitive in saying that, just as the existing legislation does not give metrics as to what amounts to 'better off overall', because it respects the fact that the Fair Work Commission has some right to use its discretion to work out what 'better off overall' means, similarly, what we're doing here is leaving it to the commission to determine whether, in the circumstances of a particular agreement, looked at globally, there is more than a marginal improvement, and, as I say, that has to be more than simply 'exceed the better off overall test'.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The bad news for employers—

David Shoebridge (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise on a point of order.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

I'll take your point of order; however, I understand Senator Cash has one more question in this line of questioning and then I will come to Senator Pocock. Given that we have many amendments to deal with in committee, what I'm seeking to do is to allow senators to go through a line of questioning on a particular issue and then move so that you get that opportunity to go through questions. At the moment, we're going through government amendments (1) to (68) on sheet PV124. Senator Cash, do you want to ask your question?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I have a series of questions. I literally have a fileful from employers in Australia.

The revised explanatory memorandum, at page 189, states that new subsection 250(3), which sets out when the Fair Work Commission may exercise its discretion to allow parties to continue to bargain for an enterprise-level agreement, 'would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances'. Can the minister confirm what is meant by 'appropriate circumstances' and can the minister please provide examples that can then be utilised when looking at this for statutory interpretation purposes.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Did you say page 189?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Page 189.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Would you mind repeating the part you were referring to?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I've got here that revised EM, page 189, states that new subsection 250(3), which sets out when the Fair Work Commission may exercise its discretion to allow parties to continue to bargain for an enterprise-level agreement, 'would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances'. My question is: can the minister confirm what is meant by 'appropriate circumstances' and could you please provide some examples? If it may assist there, it commences at 1081, at the bottom of page 188: 'For the purposes of new paragraph 250(3)(b), an employer is likely to have a history of effectively bargaining et cetera'. My question is what are the 'appropriate circumstances'?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Cash, I don't know whether we might actually be working from slightly different versions of the revised explanatory memorandum, but the point that I think you're making relates to clause 1082, at least in the version that I'm looking at, which states:

Overall, new subsection 250(3) would provide the FWC discretion to refuse an application for a single interest employer authorisation, even if the requirements in new subsection 249(1) are met, if the FWC is satisfied that the authorisation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.

Again, what constitutes appropriate circumstances is a matter for the commission. That is entirely consistent with the approach that the existing legislation provides.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

BARBARA POCOCK () (): I have a couple of questions that pick up on the question of power and bargaining. Over recent months, the Select Committee on Work and Care has taken evidence from witnesses around Australia around the issues affecting their ability to put together their jobs with the care of others. An important issue has arisen repeatedly throughout these hearings—the right of workers to disconnect from work once they've worked their paid hours. Can the minister please clarify how the bill will address the issues of workers' ability to disconnect from work so that they can protect family time, give care to others and rest?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thank you, Senator Pocock, and thank you for your work on this bill—in fact, in this area for your entire career, but particularly in relation to this bill. The government considers that employees should be able to stop work when they have finished their paid hours. It's probably something that all of us could do a better job of, especially those of us in public life. It is appropriate that employees are protected from the intrusion of work into their private lives beyond their contracted hours. This is increasingly important as more women and carers form part of the Australian workforce.

One way this issue can be dealt with is through the existing mechanism of enterprise agreements. A growing number of enterprise agreements are addressing this, including through clauses that enable employees to disconnect from digital technologies outside working hours, with employers not to contact employees outside working hours unless in exceptional circumstances or for wellbeing checks. For example, the recently negotiated Queensland state teachers enterprise agreement encourages employees to disconnect from digital technology and communications when their work is done and when they are on holidays except in exceptional circumstances. On the employer side, the education department in Queensland has committed to minimised digital communications with employees to ensure that they have an appropriate work-life balance.

It is also appropriate that award based employees have the chance to switch off from work after hours. The bill adds both job security and gender equality to the modern awards objectives and adds two new expert panels on pay equity and the care and community sector. These important changes will strengthen and clarify the Fair Work Commission's capacity to consider award matters to do with the work-life collision, including such things as the right to disconnect. It is appropriate in our changing world that the Fair Work Commission is required to consider gender equality and job security as essential parts of its role under the amended act.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

Thank you, Minister, for that answer. That's a comfort, certainly, to know that these matters can be dealt with in awards as the changing technologies of work affect so many workers with caring responsibilities. My second question: we've similarly heard a great deal of evidence around Australia that many workers in industries like retail, hospitality and aged care need greater roster justice. They need predictable shifts, a say over shift changes and the chance to refuse extra hours or be paid appropriate penalty rates for working hours beyond contracted hours. How will this bill work to improve workers' rostering rights?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

TT (—) (): Thank you again, Senator Pocock. This is an issue that's very important to me on a personal level as well, because I've met many workers in my career both here in the parliament and previously as a lawyer for workers and for unions who have really experienced this form of job insecurity, and it makes it really hard for people not only to pay their bills but also to enjoy their family life and have other commitments as well. So these are really important issues.

Our workplace laws need to respond to the changing composition of our workforce, with more working carers at work and more women in all forms of employment. That's why we've introduced new objects in the act and in modern award objectives. The bill adds both job security and gender equality into the objects of the Fair Work Act, and the Fair Work Commission must take these into account when performing its functions or exercising powers. In addition, the objects of job security and gender equality are included in the modern awards objective. We will also strengthen the bargaining system so that employers and employees can negotiate mutually beneficial rostering arrangements and systems.

Security of working time and appropriate rostering are essential components of job security. Predictable working time and a say over rostering is very important to working carers, as your question suggests. And given that so many carers are women, this also makes it a gender equality question. The important changes made by the bill will strengthen and clarify the Fair Work Commission's capacity across all its functions, including in relation to modern awards, to address the work-life collision, including issues such as rostering, predictable shifts, employee agreement to and say over changes in rosters, and arrangements in relation to the minimum length of shifts and rates of pay for extra hours worked.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I will come back to this section, but I now have some comments and questions in relation to the common-interest test. I understand that's section 243. I have been inundated with questions from employers all over the country in relation to the common-interest test. This is something they have asked me to address in detail so they can start to get a much better understanding of whether or not they could or could not be compelled to bargain when they do not wish to. So the first question I ask is this. The section 'common interests', which is used in various positions throughout part 21 of the act, lists three conditions for identifying a potential common interest:

(a) geographical location;

(b) regulatory regime;

(c) the nature of the enterprises … and the terms and conditions of employment in those enterprises.

Can you confirm that to satisfy the common interest test all three factors do not need to be satisfied?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

These are, of course, simply examples, so there is no requirement that any of these examples be met. They are put forward as examples for the commission to consider in exercising its discretion.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Unfortunately that answer is going to create great confusion tonight across Australia to employers who actually are listening in to this. This is the one section of questions that they are asking for answers to. You have said in your legislation three conditions for identifying a potential common interest: geographical location, the regulatory regime, and the nature of the enterprise and the terms and conditions of employment in those enterprises. You have now said, 'These are simply examples,' which now begs the question, given that is actually written in the legislation: what other examples are we now talking about for employers across Australia who, as I said, are listening in tonight?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thank you, Senator Cash. Again I make the point that the government is approaching this from the interests of employers, employees and unions, not just one group in this debate or in a workplace. It arises from the new clause as to whether common interest bargaining can occur and what constitutes a common interest employer. Section 249(3) says that the requirements of this subsection—which opens up common interest bargaining—are met if:

(b) the employers have clearly identifiable common interests;

Then subsection (3C) says:

For the purposes of paragraph (3)(b), matters that may be relevant to determining whether the employers have a common interest include the following:

(a) geographical location;

(b) regulatory regime;

(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.

Again, this is a matter that is up to the commission to exercise its discretion in determining whether employers have clearly identifiable common interests. Guidance is provided to the commission via subsection (3A) as to what may be relevant in determining whether employers have a common interest.

You will have followed the public debate about this, and I've seen various opposition senators, including yourself, Senator Cash, put up nonsensical examples which are designed to scare employers and employees about the operation of this legislation. People are suggesting that a small corner shop might be roped in, to use your language, to some sort of a common interest bargain with Woolworths. Complete nonsense. I find it impossible to believe that any commission exercising its discretion would decide that Woolworths or Coles or Aldi or any of the big chains have common interests to a corner store that might employ two people. Similarly, I've heard wild claims made by members of the opposition that a large cafe somewhere outside Melbourne might be roped into a the same bargain as a small cafe in Cairns. Again, it's a matter for the discretion of the commission, but I find it impossible to believe that those sores of nonsensical, wild claims that have been made by members of the opposition, designed to scare people, would stand up on any fair reading of this subsection by the commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Yet again, with every word you have just said it's just got a whole lot worse for the employers in Australia, because they had questions about geographical location, the regulatory regime and the nature of the enterprise, and the terms and conditions of employment. You have now actually stated for the record that there are a whole lot of other common interests that may or may not be taken into consideration which the Fair Work Commission themselves may or may not dream up that employers in Australia are not aware of. We are now moving, Senator Watt, into very dangerous territory.

It's not a small shop. It is someone with, when you move your amendment and it gets up, 21 employees or more. We are in the multi-employer single interest test. We're not in supported bargaining at this moment, so it is 21 or more. For the record, are you saying that you are formally ruling out whether a small shop of 21 or more—so we're right in—will not be compelled to bargain with a Woolworths-type store if they have the same geographical location or regulatory regime or nature of the enterprise. Are you ruling that in or out, because if you are ruling it in, we have a whole lot of other questions. If you are ruling it out, let's do it for the record now, and then we're going to work through the size of business that you are ruling out that will not be compelled to bargain with another business.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm sorry to disappoint you, because I know that this will take the wind out of one of your other scare campaigns that you have been trying to run, but you would be aware that, in addition to the common interest point that was already provided by the draft bill, one of the amendments that will be moved, following the negotiations with Senator David Pocock, is, if you like, an additional test that would need to be satisfied. This test is that employers must be reasonably comparable to be covered by the same proposed agreements. And, again, in the supplementary explanatory memorandum, which has been tabled, it explains some of the new amendments that are being proposed. What we have said at paragraph 71 is:

Employers of very different size, scope and scale might, depending on all the circumstances, be found to have clearly identifiable common interests for the purpose of bargaining together. This amendment would ensure that the FWC must also be satisfied that the operations and business activities of an employer are reasonably comparable with the other employers. It may be open to the Fair Work Commission to conclude that despite two employers of a similar size, scope and scale operating in the same industry, they are not 'reasonably comparable' once the full extent of their business activities and operations are considered.

So, no, Senator Cash, the example that you've provided would almost certainly not pass the tests that are being provided for, both by the original amendment that was contained in the draft bill and by this new amendment, which will also require businesses to be reasonably comparable. So I'm sorry to disappoint.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Let's have a look at what Minister Burke said on Monday 28 November 2022 in response to a question asked by Mr Fletcher. He was asked:

Last Thursday the minister told the House in question time that a small business—

so one with 21 or above—

located in a shopping centre with a large supermarket would not be compelled to bargain together with that supermarket. Given the bill specifically mentions geographical location as establishing the common interest that means a business can be dragged into multi-employer bargaining …

Minister Burke came back though with, 'The example given is wrong,' as you have now stated—that's good, because we've got to rule it out formally for the reason for statutory interpretation, so that's going to give a lot of relief to people when we formally rule out this. He says: 'The first reason is in terms of common interest.' He talks about the common interest—not comparability, but the common interest. So let's put comparability aside. He then says:

So, even if you got over the hurdle—and I don't know logically how you could get over the hurdle—on common interest, to claim that they're somehow reasonably comparable would just a beggar belief.

So I'll go back to the common interest: are you now saying that they are ruled out of the common interest?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Cash, I think that in quoting Minister Burke you've answered your own question. I didn't catch every single word of what he said there, but I think he said something along the lines that it defies belief or defies logic that it would pass the common interest test. So the answer is there in what you've quoted.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In terms of the number of employees—because, again, this is very, very important—if we go to 'reasonably comparable' you have said with certainty that it's 21 and you're out, we are no longer reasonably comparable. What happens if we're at 50? Are we ruling in or are we ruling out in terms of this example? Where are you drawing the line? This is now of great use to employers around Australia, because they will be able to say to the Fair Work Commission, 'Minister Watt has ruled us formally out on behalf of the government.' So at 21 we're ruled out; that's good news for those with 21. At 25, 35 or 50, what are you formally ruling in and ruling out by way of numbers?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thanks, Senator Cash. I don't think that Senator Cash has accurately characterised what I've said. The bill is very clear, that employers who employ fewer than 20 employees may not be added to a single-interest employer agreement or authorisation without their agreement. If there are 20 or more employees then there are additional tests that need to be met for an employer to be added to a single-interest employer agreement. In short, they have to have clearly identifiable common interests with other employers. As I said, the factors that the commission can take into account in determining whether employers have a common interest include—include—geographical location, regulatory regime, the nature of the enterprises to which the agreement will relate and the terms and conditions of employment in those enterprises. In addition to that, for a business that employs over 20 employees, they also have to be demonstrated to be reasonably comparable to the other businesses. That is what is actually provided for by this bill, rather than however Senator Cash might try to characterise it.

In addition to all that, and as Senator Cash would be aware, the government has reached agreement with Senator David Pocock that we are making an additional amendment which provides that for employers with 50 or more employees, the onus is on the employer to establish that it is not a common-interest employer or that its operations and business activities are not reasonably comparable with the other employers. But for businesses employing fewer than 50, the onus is on employees to establish that.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

We were talking 21 and above; I understand the issue in relation to 20 and below. You can actually be compelled into the supported bargaining stream. We have a whole line of questions there in relation to compelling small businesses, but we are focusing on the single-interest test.

Can we then go back to geographical location? Putting aside comparability, we have to satisfy the common interest first. In questions to the department, we have got no further in relation to any guidance on what 'geographical location' actually means. So before we go through a set of specific questions, can you tell me what the government actually means by 'geographical location'?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I suspect I'll be saying this a fair bit tonight, but that is obviously a matter for the discretion of the commission. I respect the commission enough to think that it's capable of determining what a common geographical location is for the purposes of this section. Essentially, what we're ruling out by saying this is are businesses which are on opposite sides of the coast forming part of the same agreement through this stream.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

One of the issues that I'm having—and this is why we will continue to ask these questions, and I'm glad the answer is that it's up to the Fair Work Commission—is that the government keeps saying this bill is meant to make it simpler and easier for businesses to bargain.

I am actually asking you questions on behalf of employers in this country. I didn't dream these up; employers in Australia did. To date every single answer that they are being provided with—because they're listening in—is: 'The government's not making it easier. There's nothing further for you to read. Go through all of these questions. There's nothing further for you to read.' I can read from the explanatory memorandum, but that's actually where all of the questions are coming from. I can look to Minister Burke, who insults the opposition in question time. That actually doesn't help me because you won't formally rule something in or rule something out. You keep saying you're making it simpler for business, but what we are now working through—and we've only been here for an hour and a half, so we've got a long way to go—is: 'It is being left to the discretion of the Fair Work Commission.'

Regarding geographical location, we will get onto what you've said. We're going to rule out coast to coast because that's going to help me in Western Australia—ruling out that anyone in the Western Australian mining industry is going to be compelled to bargain with anyone on, you've said, the east coast. I'll get your definition of the east coast, because that is also going to be very important going forward by way of statutory interpretation.

Going back to geographical location, it is being left to the discretion of the Fair Work Commission. I've got a whole series of questions provided by the Western Australian mining industry. Does this legislation set a distance limit when considering a shared geographical location as a common interest? We've ruled out coast to coast, so I also need to understand how you ruled out coast to coast by way of geographical location. I need to understand why, because then we can actually start to work backwards. We've now got a distance—coast to coast.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The answer to your question is no. The legislation clearly doesn't set geographical limits. That's obvious from reading the legislation.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The legislation itself may not, but, as you know, we're talking statutory interpretation tonight. I'm asking very deliberate questions to get very deliberate answers. You're on the Hansard record as ruling out coast to coast. What does coast to coast mean? I've got some in the mining and resources sector that are relying on these answers in the event they need to.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I can't add anything to what I've already said.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

In terms of being compelled to bargain, how many employees does a business require before it could be compelled to bargain with a large business?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Depending on exactly what you're trying to establish, Senator Cash, there obviously is the provision in the bill that exempts businesses with under 20 employees from being, in your words, compelled to be part of a single-interest bargain.

There are a lot of employers that are quite happy to do this, is the other point worth observing, and there are a lot of employees who are quite happy to do this. There are a lot of people who don't need to be compelled to do anything, because they choose to undertake bargaining with their employees. Probably the simplest answer is to just refer you back to the thresholds that I've already discussed.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Just to be clear, I've already ruled out talking about supported bargaining, so let's put anyone under, at the moment I would say, 16. But I understand the amendment will go through, so I am giving you the benefit of that doubt before a vote has been cast, and saying 21.

The Senate transcript was published up to 20:00 . The remainder of the transcript will be published progressively as it is completed.