James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

The committee is considering amendments (1) to (68) on sheet PV124, moved by Senator Watt.

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

Before I start this line of questioning, because it is going to be quite a technical line of questioning in relation to the better off overall test, I want to remind the chamber that the questions I asked last night and I am going to proceed to ask today are very deliberate questions. In particular they aim to enable us, to the extent possible, due to the significant uncertainty about how this legislation could be interpreted, to get clear and concise answers to provide guidance to those interpreting the government's legislative intent. For that reason, and just for the benefit of the Hansard record, I remind the chamber and the minister that the official records of parliamentary debates include questions in the Committee of the Whole stage. For the benefit of those in the gallery, that's exactly what we are doing now. We are in the Committee of the Whole stage, asking questions in relation to Labor's industrial relations legislation. They are a vital source of information when it comes to statutory interpretation.

Minister, I now want to turn to a line of question in relation to the better off overall test. I will set the scene by referring to the comments of the Minister for Employment and Workplace Relations in the second reading speech in the House of Representatives, on Thursday 27 October 2022. In relation to simplifying the better off overall test, the minister stated:

We'll make the better off overall test simple, flexible and fair.

There's consensus that approval requirements for enterprise agreements are onerous, complex and unnecessarily prescriptive.

We'll make key changes to fix this.

First, the concept of 'prospective award covered employees' is removed for enterprise agreements that are not greenfield. For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.

The bill will restore the original intent of the test as a global, rather than line-by-line, comparison against the modern award.

And, thirdly, if there is a common view that the employer and union have that the agreement passes the test, the commission will give primary consideration to that view.

In particular, I go to these comments:

First, the concept of 'prospective award covered employees' is removed for enterprise agreements that are not greenfield. For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.

That was from the minister's statement in the House of Representatives on Thursday 27 October 2022 when he was referring to the bill that was tabled at the time. If one was to go to that, in terms of a matter of statutory interpretation, it would appear at this stage that the concept of 'prospective award covered employees' will be removed. If I then go to the regulation impact statement, in terms of the better off overall test, it states:

As well as the concern over the genuine agreement requirements, employers have consistently raised issues about the application of the Better Off Overall Test …

It goes through the Coles decision, and then it says:

Employer groups are strongly of the view that the broader decline in enterprise agreement coverage across the labour market is, in part, referable to these changes in the application of the test and the uncertainty it has resulted in.

There appeared to be consensus about the changes proposed by the government in relation to the better off overall test and, in particular, to quote the minister, 'the concept of the prospective award covered employees being removed et cetera'.

In relation to the bill that was tabled, before the amendments last night were tabled, could I go through that with you now to understand, in particular, what happened in relation to the prospective employees and the hypothetical employees. What was the change originally intended to do?

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

TT (—) (): Thank you, Senator Cash. It's good to be with you again on an important piece of legislation. In general terms, can I say that the government's motivation in reforming the better off overall test is that I think pretty much anyone involved in the workplace relations system in Australia at the moment accepts that it's not working as it was intended. What we're trying to do is remove uncertainty that currently attaches to the better off overall test, by allowing the Fair Work Commission to only consider patterns of work that are reasonably foreseeable, meaning the commission will no longer be able to consider unrealistic scenarios. Of course, there are Senate amendments that we put forward that will clarify that the Fair Work Commission must consider whether reasonably foreseeable employees would be better off overall. These changes will ensure that the better off overall test is simplified, while providing strong protections to ensure no worker is worse off. You will remember, Senator Cash, that at the jobs summit both employers and unions agreed that the better-off-overall test is not operating in the way it was intended. As I said, that's why we are making these changes. The amendments clarify that, when applying the better-off-overall test, the Fair Work Commission must undertake a global assessment. It must also consider the views of the parties and give primary consideration to any common view about whether the agreement passes the better-off-overall test as expressed by the employer and bargaining representatives that are employee organisations.

In terms of our amendment that provides that the Fair Work Commission will consider reasonably foreseeable employees, I have already addressed that, but the Fair Work Commission would also have regard to patterns or kinds of work or types of employment only if they are reasonably foreseeable. A further government amendment would provide that, in making this assessment, the commission must have regard to the nature of the enterprise or enterprises to which the agreement relates. If a view is expressed by a reasonable employer, employee or bargaining representative as to whether a working arrangement is reasonably foreseeable, the Fair Work Commission must determine the matter. If the Fair Work Commission makes an amendment to an enterprise agreement to address a concern about meeting the better-off-overall test, the amendment must be necessary to address the concern and the Fair Work Commission must seek the views of the relevant parties. Additionally, the bill includes a reconsideration process to allow employees, employers or their representatives to seek a reassessment of the better-off-overall test where particular working arrangements were not considered by the Fair Work Commission when the BOOT was first applied, either because they weren't being engaged in or by omission. If the Fair Work Commission has a concern that an agreement doesn't pass the better-off-overall test as part of the reconsideration process, it must amend the agreement with retrospective effect if it considers it necessary to address the concern. However, penalty orders won't be available for any contraventions that arise only because of a retrospective variation. Hopefully, that clarifies the intent behind these amendments.

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

Could I ask what document you were quoting from so I can go get a copy of it? There are a number of issues that have been raised in relation to that response, and I would appreciate getting a copy of it so that I can then question you in relation to those issues.

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

The comments I have just made have been provided to me as explanatory points, but I suspect that will you find that at least some of them, if not all of them, are covered in the supplementary explanatory memorandum as well.

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

I want to focus on employers welcoming the changes to the BOOT and, in particular, the fact that, going forward under the original clause that was tabled, the better-off-overall test would not apply to the hypothetical or unlikely work. I will shortly take you through the Officeworks case study and the Prouds retail employees enterprise agreement because, as you know, they are not hypotheticals but actual cases that were decided. There appears now to be some inconsistency in what you have just advised the chamber of and the press release that was issued on 27 November 2022 by Adam Bandt on behalf of the Australian Greens. This has now caused, as you can understand, absolute confusion amongst employers and employees across Australia.

On one hand, we had the government allegedly working with employers following the jobs and skills summit. There was an agreement that there needed to be changes to the BOOT within reason. Those changes were reflected in the first draft of the legislation that the minister tabled and spoke to, as I stated, on 27 October. On 27 November 2022, after the deal was done with Senator David Pocock on the amendments now before the chair, a press release was issued by the Australian Greens. I want to read this into the Hansard record because I then want to explore with you what the differences are between this press release and the statement that you have just given to the Australian Senate. It read:

Greens Leader and Workplace Relations spokesperson, Adam Bandt MP and Greens Employment Spokesperson, Senator Barbara Pocock say the Greens have agreed to back the government's IR bill after securing significant additional improvements, including giving parents an enforceable right to request unpaid parental leave and protecting the existing Better Off Overall Test. The Greens have been locked in negotiations with the government on the bill for several months—

very interesting—

…the government has already included a number of long-standing Greens initiatives—

and I'll get you to take me through them shortly.

This is the paragraph of concern that has been brought to my attention, as I said, by multiple employers and employees:

The government's original bill—

the one that we've just been talking about—

attempted to remove prospective workers from being considered under the Better Off Overall Test when agreements are approved, something the Greens were concerned could have led to prospective workers being worse off. The Greens have ensured that the test in the existing s193 will remain. Further, the bill will be amended to clarify that when applying the BOOT—

this is the important bit—

and considering potential work patterns of current or future employees, the FWC will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable…

This is where the concern has been raised. We have a statement by the minister in relation to the original bill. We have the explanation that you've just given to the Australian Senate. We have the amendments in front of us, and we will go through them in detail, but at the same time we have a statement from the Australian Greens that basically says all bets are off in relation to considering potential work patterns of current or future employees, and the Fair Work Commission will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable. Seeing that was probably the biggest win that the employers have, I need to genuinely understand—again this is statutory interpretation. There is a press release here. It appears to not be consistent with what you've just said. Is the press release correct? It says:

…the bill will be amended to clarify that when applying the BOOT and considering potential work patterns of current or future employees, the FWC will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable…

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

You would be drawing a long bow to argue that a press release issued by a non-government party would somehow be used by a future court to interpret the meaning of this legislation—

An opposition senator interjecting—

I know. I am not and no-one in the government is responsible for the words that are issued by a non-government party, whether it be the Greens or anyone else. How they want to characterise things is a matter for them. What I can tell you is—and this is from the supplementary explanatory memorandum, from paragraph 24 onwards, on page 5:

New subsection 193A(6) provides that when applying the BOOT, the FWC may only have regard to patterns or kinds of work, or types of employment, if they are reasonably foreseeable at the test time.

This amendment amends subsection 193A(6) to provide that in considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.

Then it, importantly, says at paragraph 27:

The FWC must have regard to the reasonably foreseeable patterns or kinds of work, or types of employment, for both existing award covered employees and foreseeable employees…

It does refer to the Coles case, which I assume is the same Coles case that you're referring to. So the Fair Work Commission would no longer be required to consider hypothetical working arrangements that are not reasonably foreseeable.

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

Just to ensure the record is correct, despite what you said, I was in no way was suggesting a Greens' press release would be utilised. I was though stating your statements in response would be. What I have just heard from you is, and with all due respect to Senator Barbara Pocock—and I am sure you will have an opportunity to respond, Senator Pocock—the statement in the press release issued by Adam Bandt, the Leader of the Australian Greens, is wrong, based on what you've just said.

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

I'm not going to sit here and assess, on a one to 10 point scale or by any other means, whether what the Greens say on any matter is correct. What I'm telling you is what the government's position is and what the law is. The core change we are making here is to require the Fair Work Commission to only have regard to patterns or kinds of work or types of employment that are reasonably foreseeable. The Senate amendments will not change this. In the Senate what we are seeking to do is simply to clarify that the Fair Work Commission must consider whether reasonably foreseeable employees would be better off overall after considering the views of the parties and the nature of the business. This capacity is relevant where there are no employees actually employed under a particular classification in an agreement at the time of approval but they are realistically likely to be in future. Any working arrangements considered by the Fair Work Commission, whether for current or future employees, must be reasonably foreseeable. It's a matter for the Greens what they want to say about this debate. I am not here to say whether they're right or wrong. That's for them to say.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

Senator Pocock, I'm going to call Senator Cash at the moment because she has a line of questioning. After Senator Cash, if there is a break I will come to you.

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

I feel that certain statements have been made about the Greens, and I would like the opportunity to respond while they're before us.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

It would probably assist the chamber if we could let Senator Cash finish the line of questioning in relation to those statements, then I will come to you so you can respond in full. I'll make sure that the following chair knows that too.

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

In relation to your political comment, Senator Watt, I would say that you have done a deal with the Australian Greens to get this legislation through. That is in the public. Therefore it is appropriate I ask questions in relation to the deal that has been done so we get an understanding as to the impact of the deal on the legislation. Given the press release and your statements, and given the concerns that have been raised by employers—as I said, there is the original draft; there is the agreement with employers in relation to the better off overall test changes; there are the statements made by Minister Burke in his second reading speech. Then jump forward to but a few days ago, and there is an announcement of a deal. Employers have expressed their disappointment. In particular, there didn't appear to be statements made by Mr Burke in relation to the deal struck that had been with the Australian Greens but for the press release issued by Mr Bandt. Based on the Greens' statement, the issue of prospective employees would remain. I'm still struggling to understand. You're saying they're wrong and you're right. If we could perhaps turn to two case studies, I think the case studies will take us through what actually will be in and out.

The first case study is in relation to the 2019 Officeworks case. I know the department and the ministerial advisers will know the Officeworks case. The 2019 Officeworks enterprise agreement provides a compelling example of where process prevails over substance. After objections were lodged by one union, the Fair Work Commission asked Officeworks to provide undertakings of a cold work allowance and a liquor licence, despite the fact these have nothing to do with the Officeworks business. This is for an agreement which was voted on by more than 80 per cent of eligible employees, with 97 per cent voting in favour of the agreement.

This is one example of what had become too common when seeking to have enterprise agreements approved. I think that would have been raised with you by employers, because the Officeworks case is one of the most famous cases when it comes to being asked to provide an undertaking about a cold work allowance and a liquor licence, despite the fact that it had nothing to do with your business, the fact it was voted on by more than 80 per cent of eligible employees, and of that 80 per cent 97 per cent voted in favour. Would the changes proposed by the government to the BOOT mean that the Fair Work Commission would now find this decision differently?

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

enator WATT (—) (): Senator Cash, as we were discussing yesterday, I'm not going to categorically say what an independent Fair Work Commission will or will not find when a case is brought to it. But it is certainly the intention of the government to, if you like, fix the Officeworks-type situation. Again, I direct you to the supplementary explanatory memorandum, paragraph 28, which says:

The FWC would no longer be required to consider hypothetical working arrangements that are not reasonably foreseeable, given the nature of the particular enterprise, and employers—

This is the important part—

would accordingly no longer need to provide undertakings in relation to such arrangements (as occurred, for example, with an undertaking about the holding of a liquor licence and work in a cool room, despite the enterprise not serving liquor or having a cool room—

And there's a direct reference in the explanatory memorandum to the Officeworks decision.

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

Well, thank you, and there is, and that is why I asked the question. Based on the new test that you are applying, and looking at the Officeworks enterprise agreement and the 2019 case, you've just said you can't rule it in or out, and that's the issue that I have. The explanatory memorandum looks like it rules it out. You're saying you can't, that it's at the discretion of the Fair Work Commission. This is actually one that you own. It is in your own explanatory memorandum. On that basis, my understanding is that you would no longer need to give an undertaking in particular about, for example, the holding or a liquor licence and work in a cool room despite the enterprise not serving liquor or having a cool room. On that basis, we could all agree that the Officeworks case would be decided differently.

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

I think it would be reasonable to expect that it would be decided differently, because the explanatory memorandum says that the types of undertakings that were required in that decision would no longer be needed. I'm not going to predict what the Fair Work Commission will decide on any matter, but I think it is reasonable to expect that the Officeworks decision would be decided differently because of the clear wording of the explanatory memorandum.

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

I'll go through another case study, and then I have a few questions on prospective employees, and then obviously I will cede the call to Senator Pocock for what time she needs.

In relation to—and again, this is not a hypothetical; these are actual cases—the Prouds retail employees enterprise agreement, in May 2019, 86 per cent of voting employees voted to support the agreement, but the Shop, Distributive and Allied Employees Association, the SDA, argued that the agreement should deal with outlets that employ more than 15 employees per week, despite the fact that Prouds never employs more than 15 employees in any one of its stores on a regular basis. It took 16 long months from the date of lodgement with the Fair Work Commission to have that agreement finally approved. The issue the business had with that was that it took them away from creating jobs and left employees worse off while arguing about completely hypothetical situations. Again, similar to the Officeworks case, they had to provide undertakings to the commission in relation to a cold work allowance and a liquor licence, despite that having nothing to do with their business.

We've now confirmed—Officeworks will be very happy to know—that that's been ruled out. That is very good. But this is now another agreement and it is in relation to very similar outlets that employ more than 15 employees per week despite the fact that Prouds never employs more than 15 employees in any one of its stores on a regular basis—16 months longer; at that time the business literally says it stopped them from creating jobs and left employees worse off. The whole point there was that they actually had to argue about completely hypothetical situations that did not exist. When we look at clause 28 on page 5 of the supplementary explanatory memorandum, again, does the Prouds retail case now fit within that?

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

Again, I'm not going to say what the Fair Work Commission will decide on a particular matter; that is always a decision for them. The entire point of this amendment is to eliminate hypothetical working arrangements that are not reasonably foreseeable. The entire point of this amendment is to speed up the process and avoid the sorts of protracted matters such as the one you're referring to. I don't think I can be any clearer than to say that, in any matter Fair Work Commission will consider, they won't be required to consider hypothetical working arrangements that are not reasonably foreseeable.

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

Can I confirm, then: there is nothing stopping the Fair Work Commission from considering a prospective employee; is that correct?

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

That is correct—if that prospective employee is a reasonably foreseeable one. It all hinges on that.

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

This will be my final question if I can get an answer from you. In relation to the original bill that was tabled and the amendments I now have in front of me: I need you to take me to what are the key differences in terms of inserting back in 'reasonably foreseeable employee'. My understanding is that, under the bill that was tabled that the minister spoke to, the concept of 'prospective award', 'covered employees' and 'reasonably foreseeable employee' was removed. We're now adding that back in by way of section 524B, with section 12, and all the subsequent sections that add back in 'reasonably foreseeable employee'. I just want to make sure I've got the key differences absolutely certain.

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

Just to be clear: you're asking where the new references are to 'reasonably foreseeable employee' within the amendments?

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

With the original bill, you took that out. You're now inserting it back in. I just need to understand: is that what's going to happen?

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

Senator Cash, for the sake of completeness, I might take on notice and come back to you with each of the instances where there has been that change. I can point you to amendments 526C and 526D, and then there are the ones we've been talking about in relation to the better off overall test. I will come back to you on notice as to the complete list.

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

Thanks, Minister, for your explanations there. Senator Cash has implied there's some kind of inappropriate or nefarious discussion or negotiation underway and that that's somehow illegitimate. I want to reassure people at home who are watching that, since coming here as a senator less than six months ago, I've seen nothing but discussion, compromise, negotiation and often improvement in things; there's nothing untoward about it. Anyone who wants to know what values or issues the Greens took into those discussions with the government can look on our website. There's nothing secret about what we did. Our vote increased at the last election because people want an end to things like pay secrecy. They want a group of senators in here who are making sure that those low-paid retail and hospitality workers don't fall through the bottom of the BOOT. I think it's very important we have been in discussions to improve the test, making sure those young employees who are very powerless are protected. Our sole focus has been on those protections in relation to the BOOT. We've sought to preserve the essential elements of the BOOT, so that new workers, or foreseeable working conditions, don't move workers backwards.

I want to follow that statement with a question to the minister. You've clarified the questions of 'reasonably foreseeable circumstances' and the way in which the BOOT will operate to protect those low-income workers, many of whom are young. I wonder if you could say a little about the reconsideration process and how that will work to also make sure that those workers—young workers, low-paid workers—don't fall through.

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

Thanks for that, Senator Pocock. I don't know if I made this point earlier in responding to Senator Cash, but you're quite correct that the bill includes what's known as a reconsideration process to allow employees, employers or their representatives to seek a reassessment of the better off overall test, where particular arrangements were not considered by the Fair Work Commission when the better off overall test was first applied, either because they were not being engaged in or by omission.

The fundamental point here, of course, is that the government does not want to see workers left worse off. If the Fair Work Commission has a concern that an agreement does not pass the better off overall test as part of the reconsideration process, it must amend the agreement with retrospective effect, if it considers it necessary to address the concern. However, penalty orders won't be available for any contraventions that only arise because of a retrospective variation. Really, the intention of the reconsideration process is to permit adjustments to the bargained outcome only to the extent necessary to address a concern about the better off overall test because of a working arrangement that was not initially considered. The intention is not to interfere with the working arrangements for employees who are not affected by the concerns or unnecessarily disrupt the operations of the enterprise. The Business Council and the ACTU both support a better off overall test reconsideration process for enterprise agreements.

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

At this stage, we will move on to another section of the act. I may have to come back to you in relation to further questions on the changes to the better off overall test. An issue came up at the committee hearing, but we didn't get very far with the department. It's about getting a better understanding from you on what the actual effect and the intention of this particular section of the bill are. Can you please advise what the changes are to section 186 of the bill?

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

Section 186, which you refer to, falls within the part of the bill that deals with enterprise agreement approvals. Overall, what we're seeking to do is simplify the process and remove unnecessary complexity for workers and employers by simplifying the agreement preapproval requirements. As to why we're doing this, there's consensus that the preapproval requirements for enterprise agreements are onerous, complex and unnecessarily prescriptive. This can be a disincentive to bargain and can sometimes have significant consequences for employers and workers where an agreement was been reached but cannot be approved because of a procedural error during the course of the bargaining process.

As to what the amendment involves and the proposal involves, it would replace certain preapproval requirements with a broad requirement that the agreement has been genuinely agreed to by relevant employees. A government amendment retains the existing requirement that employers must take all reasonable steps to ensure that the terms of the agreement and the effect of the terms are explained to employees in an appropriate manner, taking into account their particular circumstances and needs. The Fair Work Commission must also be satisfied that the employees requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative having regard to the employees the agreement is expressed to cover. The Fair Work Commission will issue a statement of principles on genuine agreement to provide guidance to employers on how to ensure an enterprise agreement has been genuinely agreed to by employees.

I suspect that might be something of interest to you and the people who've been in touch with you as to what genuine agreement amounts to, and that's something that the Fair Work Commission will issue a statement of principles on. That document, when it's issued, will play a significant role in ensuring the changes do not erode employee safeguards. A government amendment also provides that, before an employer requests employees approve a multi-enterprise agreement by voting for it, the employer must obtain written agreement to the making of the request from each bargaining representative for the agreement that is an employee organisation. The government wants to ensure that employers are not unreasonably prevented from putting agreements to a vote, and that's why a further proposed government amendment would permit the Fair Work Commission to order, on application by a bargaining representative, that an employer be permitted to put a multi-enterprise agreement to a vote where employee organisations' failure to provide their agreement is unreasonable in the circumstances.

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

That was the global overview of section 186. Can I just now go to some of the specific amendments that are being made:

647 After subsection 186(2)

Insert:

(2AA) In applying paragraph 186(2)(b), the FWC must disregard anything done, and the effect of anything done, by a person other than one of the employers who bargained for the agreement, that is authorised by or under this Act (including protected industrial action).

What is the effect of this new section?

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

Putting it simply, Senator Cash, what this is seeking to do is make clear that what would represent genuine agreement needs to be based on the content of the agreement, rather than necessarily the process of getting there. For instance, if a majority vote of employees at a workplace resulted in the employer being brought to a multiemployer agreement, that would not in itself demonstrate genuine agreement or opposition to that agreement from the employer.

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

Can I then ask, in terms of the definition of coercion in section 186 of the act, what does that actually include?

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

Senator Cash, I'm sure you'd be familiar that there's extensive case law on the meaning of 'coercion' as it relates, for instance, to the general protections provisions of the existing legislation. So our expectation would be that it would attract the same meaning in the context you're putting it forward.

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

Can I then confirm that coercion does not include taking industrial action or threatening to take industrial action? And, again, with all due respect—and we went through it last night—whether or not I have any knowledge is actually irrelevant. I'm deliberately asking the questions for the benefit of the Hansard record.

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

I'm not having a go.

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

No, thank you. Obviously, as I said, these are very genuine questions. This is a new section. There's a section in the act that says, currently, 'Approval of enterprise agreements' by the Fair Work Commission. Section 186, 'When the Fair Work Commission must approve an enterprise agreement—general requirement', sets out the basic rule. It then says currently under186(2):

The FWC must be satisfied that:

…   …   …

(b) if the agreement is a multi-enterprise agreement:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement; and

The point of the line of questioning is that, if I look at the amendment, the amendment says we're now swooping in above that and what we're now saying is that:

if the agreement is a multi-enterprise agreement: no person coerced, or threatened to coerce, any of the employers to make the agreement …

The bit I'm struggling with then is, you're now saying:

Insert:

(2AA) In applying paragraph 186(2)(b), the FWC must disregard anything done, and the effect of anything done, by a person other than one of the employers who bargained for the agreement …

Again, what, in terms of the definition of coercion in section 186, does it not include taking industrial action or threatening to take industrial action?

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

As I say, I wasn't having a go, Senator Cash, in suggesting you might know that there's extensive case law. I was recognising your experience in this area. What I can also direct you to in the revised explanatory memorandum is in, I think, the next paragraph from the one you were reading from. So, paragraph 1119, about halfway down, it makes the point that 'protected industrial action taken by the employers/employees during bargaining for the agreement would not amount to coercion. The employer, having requested its employees to vote to approve the agreement, could be taken into consideration as could any unprotected industrial action taken by the employees.'

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

So proposing to take industrial action, which would financially cripple a small or family business or a business over, say, 21, in order to get an employer to sign an enterprise agreement—is that permitted?

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

Senator Cash, my limited recollection of the case law on coercion is that simply proposing to take protected industrial action does not amount to coercion. I mean, whether we're talking about employers or employees, given that the current legislation that your government presided over allowed for protected and industrial action to occur, albeit with significant constraints around it, the mere fact that that is provided for in the legislation would suggest pretty strongly to me that that does not amount to coercion. What the explanatory memorandum is trying to say is that coercion could, for example, be unprotected industrial action, unlawful intimidation or threats. I've been reminded that the leading case on the meaning of coercion in this context is the Esso decision, and that found, essentially, that coercion needs to involve negation of choice and the use of unlawful, illegitimate or unconscionable means.

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

I'm disappointed, Senator Watt, that you had to refer back to the act you presided under. Just so you're completely aware, whenever you say that you don't insult me, but you do insult former Prime Minister Gillard and former Prime Minister Rudd, because it is your regime. No-one here is insulted by the comments that you are making. We didn't have the numbers in the previous Senate. We relied on you. You opposed everything, including our changes to the BOOT. Every time you want to say that going forward, please note that none of us are insulted, but I'm quite sure that in insulting Prime Minister Rudd and Prime Minister Gillard, given it is Labor's Fair Work Act, there will be many on your side who are disappointed.

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

The fact that we are putting forward amendments to this legislation indicates that the Albanese Labor government does think that the Fair Work Act needs improvement. Yes, the Fair Work Act was introduced by the Rudd-Gillard governments. As time goes on it needs improvement, just like every piece of legislation. The point I'm making is that over the course of this debate, both last night and today, you have suggested that there are things in the amendments that we're putting forward that are wrong or immoral or will do this or that, when in many cases they are picking up concepts that were contained in the legislation that existed when you were the minister. You did attempt to make amendments to the Act while were you the minister, many of which would have actually made workers' position worse off. I am very proud of the fact that we resisted those. Now that we're in government we're about trying to improve this act from where it began under the Rudd-Gillard governments, from where it was under your government, to where it needs to be to make sure that workers in this country get a decent pay rise and we can lift productivity in businesses as well.

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

Could I just go back to clarify again for the Hansard record: proposing to take industrial action, which would financially cripple a smaller family business or a smaller business, in order to get an employer to sign an enterprise agreement, based in particular on the case law that you have referred to, is permitted?

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

I repeat that, in the example you're giving, proposing to take protected industrial action, which is a legal right that employers and employees have, does not amount to the negation of choice and the use of unlawful, illegitimate or unconscionable means. Similarly, just as you give an example of employees proposing to take protected action, if an employer was to propose to lock out its employees in line with the law, that would not be coercion because it's not unlawful, illegitimate or unconscionable. What would be unlawful, illegitimate or unconscionable, and therefore could amount to coercion, is unprotected industrial action, unlawful intimidation or threats.

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

Can I go to the effect of the amendment itself. Is it then to actually make explicitly clear, given the wording of amendment, the Fair Work Commission must disregard anything done and the effect of anything done by a person other than one of the employers who bargained for the agreement? The effect is to make it explicitly clear that anything done by an employee or their union under the umbrella of industrial action is permitted when negotiating an agreement?

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

That provision is really just for the avoidance of doubt. All of the existing powers of the commission in relation to protected action, for example, by employees or employers would remain on foot for the purposes of this section, as with every other section.

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

This is the whole point which employers have raised with me. What was the rationale behind including the section, given what you have just said, other than the government effectively telling Australians that to get what you want in the workplace, all you need to do is threaten industrial action, and that is the whole point? What is the rationale behind adding or inserting section 2AA?

Why the difference between what unions do and what employers do? I don't see any need for this particular section other than you do want to make it clear that anything done by an employee or their union in undertaking the application of section 186(2)(b), the Fair Work Commission does not need to take into consideration, unless it is one of the employers who bargained for the agreement. You have confirmed, therefore, that proposing or threatening to take industrial action that would financially cripple a small or family business or a smaller business to force them to sign the agreement is actually not coercion and therefore allowed.

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

There is a very good reason section 186(2AA) refers to employers, and that's because it relates to the existing section 186(2)(b). That existing provision provides that in order to approve a multi-enterprise agreement, the Fair Work Commission must be satisfied that:

(i) the agreement has been genuinely agreed to by each employer covered by the agreement; and

(ii) no person coerced, or threatened to coerce, any of the employers to make the agreement …

Given that the focus of 186(2)(b) in the existing legislation is on the behaviour or mind of employers, that's why section 186(2AA) also deals with employers. There is no reference in the current section 186(2)(b) to employees or to unions; it's focused on employers. That's why 186(2AA) also refers to employers. If, as I think you're suggesting, this new provision were to also refer to employees, it would be completely meaningless, because it connects back to 186(2)(b), which is all about employers.

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

I go to the amendment:

647 After subsection 186(2)

Insert:

(2A) If the agreement is a cooperative workplace agreement that is not a greenfields agreement, the FWC must be satisfied that at least some of the employees covered by the agreement were represented by an employee organisation in relation to bargaining for the agreement.

One of the issues that has been raised with me time and time again in relation to this particular amendment is that it says the Fair Work Commission must be satisfied that 'at least some of the employees' are represented by a union. How many does this mean?

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

The question is how many?

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

After subsection 186(2), you are also inserting:

(2A) If the agreement is … the FWC must be satisfied that at least some of the employees covered by the agreement were represented by an employee organisation in relation to bargaining for the agreement.

The question is an obvious question that has come from far and wide. It literally becomes 'must be satisfied that at least some of the employees'. What does that mean, literally?

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

As was the case last night, we are trying to get into strictly defining terms that have ordinary meanings in the law. The word 'some', as in 'some employees', would be considered under its usual meaning. I think it would be fair to assume that we're talking about more than one, because, if we were talking about one, the word 'one' would be used. So I think it would be fair to assume that we're talking about more than one, but, of course, the word 'some' has a usual meaning that would be applied by the commission.

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

Thank you. That's exactly where I wanted to get to: what is the minimum number? For very obvious reasons, when an employer or employee reads this, there is no explanation anywhere in the bill. You say that the word 'some' has its usual legal meaning. That's great, but they don't have a time to grab a book and look up the usual legal meaning in Australia of 'some'. I want to confirm because of statutory interpretation. This is very important and has been raised with me across the board. More than some means more than one? This is the exact point that employers have been raising with me. Whilst there is no minimum number, you are saying one employee alone will not suffice, based on the usual legal meaning of the word 'some' for the employees covered? That's the exact issue that's been raised. Would it require more than one?

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

WATT (—) (): I'm not sure that I talked about the usual legal meaning of 'some'. What I'm talking about is the usual meaning of 'some'. People use that word every day in Australian life, and I think they know that 'some' is more than 'one'. But let's remember that what we're talking about here is cooperative workplace agreements. There are obviously a range of different streams of agreements being provided for by this legislation. What we're talking about here is the cooperative workplace agreement where there is agreement between an employer and a union that a particular workplace should have its terms and conditions governed by a cooperative agreement, so the entire basis of this stream of bargaining is that there is agreement between an employer and a union in which there are at least some of the employees. Really the point of it to say that not every employee at that business needs to be represented by a union but at least some of them are.

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

I do appreciate that guidance because that was literally the issue that was being raised—whether 'some' did equate to 'one'. It will give people satisfaction that, based on that answer, 'some' does not equate to 'one'. That actually does clear that up. It could be two, but it is not one.

One of the issues that has been raised both at Senate estimates and in relation to the inquiry—as you are aware, we just have not had that opportunity to properly go through any of this—is in relation to the powers of the Fair Work Ombudsman or, should I say, the current powers of the Australian Building and Construction Commission under the relevant act that transfer over to the Fair Work Ombudsman. I want to now take you through—and it's going to take some time—each power, because we received something back from the department that had words to the effect of minimal difference, or no substantive difference. So, we'll be going through all that as well. But perhaps, in the first instance, I could turn to some basic questions. Senator Lambie, in a question on notice, asked: 'I just have one follow-up question, because we're on the ABCC, and it has a tremendous amount of powers. What's the difference between their powers and what's been passed over to the Ombudsman and Fair Work? What's the difference?'

Ms Sheehan replied, 'We took a question on notice at estimates to put it in a simple table form', and then we have the simple table form. I've now gone through the simple table form and, as I said, it will take us some time, because we're actually going to—and I'm saying this to give a heads-up to the department that somebody probably with knowledge of the transfer of powers may well be required. In the first instance, can I confirm that, in relation to the transfer of some of the powers of the ABCC to the Fair Work Ombudsman, the Fair Work Ombudsman will not have the ability to make submissions in Fair Work Commission proceedings?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's correct, but the minister does.

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

But the Fair Work Ombudsman does not, unlike the Australian Building and Construction Commission, which did?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

There's nothing stopping the Fair Work Commission from asking for that.

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

enator CASH (—) (): Again, though, I really want to be specific in relation to the actual transfer of the powers. The Fair Work Ombudsman themselves, unlike the Australian Building and Construction Commission, do not have the ability on their own volition to make a submission in Fair Work Commission proceedings. They may well be asked, but they also may not be asked. So, of their own volition they won't have that ability?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

A limited ability for stand down and right-of-entry provisions.

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

You say 'a limited ability' in relation to, you said, 'stand down and right of entry', and we're about to go through some right-of-entry cases. I need you now to explain what you mean by 'limited ability'. And can you take me to where that transfer of power is?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that we're talking about existing powers that the Fair Work Ombudsman has.

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

Thank you for that clarification. There is no transfer. Can I confirm that you are merely referring to a power that currently exists in relation to what was under the BCIIP act that does not transfer?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Correct.

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

Then, in relation to the stand down and right of entry that you stated under the current powers, the Fair Work Ombudsman has a 'limited ability'. How is a 'limited ability" defined?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We believe that the Fair Work Ombudsman is well resourced and has the ability to regulate laws. We've provided them with $70 million over the next four years. These resources will ensure there's no shortfall in workplace relations regulation within the industry after the ABCC has been abolished. The ABCC's legal cases will be transferred to the Fair Work Ombudsman for them to manage independent of government.

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

With all due respect, I don't know what question you answered—maybe the shaman was talking to you. I genuinely did not ask that question. The question I asked was about you saying 'limited ability'. There is a current power for the Fair Work Ombudsman, according to your evidence, where they have a 'limited ability' to intervene in relation to stand down and right-of-entry. I have asked you to show me where the current power is and tell me what you define by 'limited ability'?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

In any proceedings, the Fair Work Ombudsman can tell the Fair Work Commission it has relevant evidence and can put that evidence or intervene in proceedings. The Fair Work Commission has broad power to grant such requests.

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

Can I just confirm that unlawful picketing in section 47 is definitely not in the Fair Work Act? Would the Fair Work Ombudsman have the ability to intervene in relation to unlawful picketing proceedings?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

HOLM (—Assistant Minister for Education, Assistant Minister for Regional Development and Deputy Manager of Government Business in the Senate) (): No, but they can be dealt with under a range of other regulations.

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

Excellent. So now take me through the other range of regulations.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Unlawful picketing provisions could also be a breach of the industrial action provisions of the Fair Work Act; secondary boycott provisions of the Competition and Consumer Act 2010; and, obviously, of state and territory criminal laws—for example, the offence of obstruction of people or traffic in a public space. The common law as well—for example, the torts, and trespass and nuisance.

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

Senator Cash. Can I confirm then: is the Fair Work Ombudsman required to intervene in Fair Work Commission matters or is it discretionary?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Discretionary.

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

I'll go back to the ability of the Fair Work Commission to intervene, where we now understand that there's a difference and the powers of the ABCC do not transfer over to the Fair Work Ombudsman in this regard. You have stated that you believe the Fair Work Ombudsman does have a limited ability to intervene in relation to stand down and right-of-entry matters, but what we have also determined is that the Fair Work Ombudsman is not required to intervene in Fair Work Commission matters, that it is merely a discretion that the Fair Work Ombudsman has—depending on their workload, to be fair.

We've heard a lot about the discretion of the Fair Work Commission. To be fair to the Fair Work Ombudsman, they may say, 'There's too much going on, we will not intervene.' Based on your last answer, on unlawful picketing, can you take me to exactly where in the Fair Work Act unlawful picketing itself is? What section?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We'll take the specific references on notice and come back to you.

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

That is absolutely an unacceptable answer. You are abolishing the Australian Building and Construction Commission. You have key figures from the department here who have provided a table. It is a very, very simple question, and I would ask—don't take it on notice; we are going to be here until two o'clock—with all due respect that you find me the section in the Fair Work Act please that directly refers to unlawful picketing.

It is my understanding that the Fair Work Ombudsman will not have the actual ability—and we've actually determined they don't—to intervene in such cases, for example, stopping union officials such as Luke Collier from holding a right of entry permit. In September 2022, only after the ABCC Commissioner intervened, Dean Riley was denied to renew his federal entry permit. For the benefit of those listening in, Dean Riley is a man who used homophobic slurs against a safety inspector. Again, can I confirm there is no obligation on the Fair Work Ombudsman, unlike on the Australian Building and Construction Commission Commissioner, to intervene?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Under section 507 on right of entry, the Fair Work Ombudsman inspector may bring proceedings against a permit holder, so it's discretionary.

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

Thank you. It is discretionary, so they do not have to. In September 2021, only again after intervention of the Australian Building and Construction Commission Commissioner, CFMMEU Queensland state secretary Michael Ravbar abandoned his application to renew his right of entry. Under Mr Ravbar's watch, the Queensland division and its officials have contravened industrial law on 175 occasions in 28 separate proceedings. Again, can I confirm there is no obligation on the Fair Work Ombudsman to intervene?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The Fair Work Ombudsman operates as an independent regulator, so it would be same as the ABCC. It would be up to them.

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

So the discretion is completely up to them. In May 2021, assistant secretary of the New South Wales branch of the CFMMEU Michael Greenfield only discontinued his application for a right of entry permit because of the submission of the Australian Building and Construction Commission. For the record, in the Botany Cranes case, Mr Greenfield was found to have said to the managing director, 'If I were you, I would effing sign it'—his threat—'What do you think will happen to you?' This was followed up the next day by, 'If you sign the EBA, we will leave your sites alone.' In a case like this, where there is clear coercion, as shown in a court of law, the Fair Work Ombudsman is not obliged to make a submission against the right of entry permit application; they merely have the discretion to, based on their workload?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think it's a hypothetical question that you've put to me there, Senator Cash. What I have said, and I think it has been repeated here today by my colleague, Senator Watt, the Fair Work Ombudsman will be well resourced over the next four years. There's almost $70 million that we've put there. This includes an additional 80 staff. These resources will ensure there is no shortfall in workplace relations regulation within the industry after the ABCC has been abolished.

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

How is it a hypothetical question to ask whether or not, under the abolition of the ABCC and the supposed transfer of powers to the Fair Work Ombudsman, the Fair Work Ombudsman would have had an obligation to actually intervene? I am asking directly about a transfer of powers. How is that a hypothetical situation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Because the Fair Work Commission has broad powers to invite submissions or evidence in relation to proceedings.

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

If there is no obligation, when would the Fair Work Ombudsman exercise their discretion? I know it is independent, but what is the government's expectations?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We expect them to operate as the independent regulator. We've ensured that they are well resourced, so that would be a decision for them.

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

With respect to employers in the building and construction industry, can you detail what powers are available to the Fair Work Ombudsman to take action in relation to industrial action or effects thereof on a site and other related or unrelated sites if all subcontractors do not have a union endorsed enterprise bargaining agreement?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's the Fair Work Commission that has those powers, and that hasn't changed.

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

My question was in relation to the Fair Work Ombudsman and what powers they have. Are you saying that they don't have any?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It's always been the Fair Work Commission that would have been responsible for that part of it, and that hasn't changed.

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

With respect to employers in the building and construction industry, can the minister detail what powers are available to the Fair Work Ombudsman to take action in relation to stoppage of work by a union because a subcontractor would not enter into a union endorsed enterprise bargaining agreement?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

There are various areas of the Fair Work Act that would apply, and they would enforce them.

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

In relation to my first question and now my second question, the question, with respect to employers in the building and construction industry, can the minister detail what powers are available to the Fair Work Ombudsman to take action in relation to industrial action or effects thereof on a site and other related or unrelated sites if all subcontractors did not have a union endorsed enterprise bargaining agreement—was this power available to the ABCC?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

For unlawful industrial action, the Fair Work Commission can act in that regard. That was the same under your government, and that hasn't changed.

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

That wasn't my question. My question was, was this power available to the Australian Building and Construction Commission? To preface that, I started at the beginning by saying that we had asked a number of questions in relation to the transfer of powers from the ABCC to the Fair Work Ombudsman. I'm not interested in what the Fair Work Commission can or can't do. That's the current rule; I understand. I'm talking about the fact that today or tomorrow morning we will formally abolish the Australian Building and Construction Commission. They operate under a specific piece of legislation. I'm asking the questions very genuinely. As I said to Senator Watt last night and again this morning, these are important questions of statutory interpretation. So I'm only dealing with the powers the Australian Building and Construction Commission had, and whether or not they transfer over to the Fair Work Ombudsman. What other bodies may or may not be able to do is the current situation. My questions are in relation to the transfer of powers from the ABCC under the BCIIP Act to the Fair Work Ombudsman.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We are confident that there will be no gaps and that those workplaces will be regulated appropriately.

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

'We are confident there are no gaps' is going to come back to bite you, because we're about to work through 74 gaps. It's going to be a long afternoon. Again, I'm going to have to ask you—and, again, I have no problems with someone giving you the advice. You have said, 'We are confident there are no gaps.' I'm going to go back to the first one. With respect to employers within the building and construction industry, can the minister detail what powers were available—not the Fair Work Commission, not any other body—to the Fair Work Ombudsman to take action in relation to industrial action or threats thereof on a site, and other unrelated or related sites, if all subcontractors did not have a union endorsed enterprise bargaining agreement and was this a power available to the ABCC?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The powers under the Fair Work Act are what will apply.

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

It's going to be a long afternoon if I have to keep asking the questions and we do not get the answers. Again, there is an entire industry watching these proceedings. They would genuinely like to know what exposure they have to the likes of John Setka, the most militant union in Australia, the construction division of the CFMMEU. This is genuine questioning. You're abolishing a body, and that's your decision—I accept it's an election commitment—but there is also a transfer of powers or not. You have said on the Hansard record, 'We are confident that there are no gaps'. To date we've discovered there are some gaps. Minister, with all due respect, answers such as, 'We are confident we've given them money'—that's not the line of questioning I'm going down. We are going to go through each power they had and whether or not it transferred over. I'm going to have to assume, if you cannot give me an answer—because you have got advisers there—it is going to be no. Then later today we're going to have to go through what you mean when you say you are confident that there are no gaps.

With respect to employers within the building and construction industry, can you detail the powers that are specifically available—not to the Fair Work Commission—to the Fair Work Ombudsman, and take me to where they are, in relation to stoppage of work by a union because a subcontractor would not enter into a union endorsed EBA?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Once again, it's the Fair Work Act that would apply.

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

This is unacceptable. We will need to take a break to get someone to come into this place—I don't care who it is—who is actually going to inform the Senate. You knew you were coming in here today. I'm quite sure the minister's office, the department and your office knew there would be a line of questioning in relation to the abolition of the Australian Building and Construction Commission. Do you honestly think it is acceptable? There are people in the gallery here today who are witnessing a minister within the government either refusing or being unable to provide the Australian Senate answers to incredibly simple questions.

You have said you are confident there are no gaps. I'm now exploring the statement that you have made to the building and construction industry across Australia. They employ in excess of 1.1 million employees. Over 400,000 small businesses rely on them. They contribute about nine per cent annually to Australia's GDP. You have no answers in relation to some of the most basic questions, which either the minister's office or the department should have anticipated. Again, it will be a very, very long three hours, because I will go through each one of them. As I said, what I'm reading out are powers that the ABCC had. I'm asking you—it's a simple yes or no—has this power transferred over to the Fair Work Ombudsman? The answer, 'It's in the Fair Work Act,' is not helping anybody, so we're going to go through this again.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks for the lecture there, Senator Cash. We know your position on the ABCC, and as you pointed out today, you've acknowledged our position on the ABCC, which we took the election. I did actually have a look up at the gallery when you mentioned that. I do see some familiar faces up there, and I get a sense that a lot of them are here because they want to see this bill passed. We know that you've been opposed to this legislation from the beginning, as you are entitled to be, but stop the lectures. I'm answering your question, I'm happy to sit here for as long as you want and I'm providing the answers that are required.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I want to proceed with the ABCC. Minister, you are actually from Queensland. You're a senator representing Queensland. There has been a 50 per cent spike in the number of new investigations launched into alleged wrongdoing in the building sector in Queensland, more than any other state or territory. The militant construction union, the CFMMEU, was hit with 88 per cent of the $3 million in fines for breaches of the Fair Work Act imposed by the soon-to-be-defunct Australian Building and Construction Commission. Of the $5.1 million in fines the ABCC imposed in Queensland since it was restarted in December 2016, $4.4 million—or 87 per cent of these—were against the CFMMEU or its officials. How is this behaviour going to be dealt with in the bill?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. I think we've covered this substantially. We have resourced the Fair Work Ombudsman well. We've traversed this through questions this morning, and they are the ones that will be responsible for it.

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

BARBARA POCOCK () (): We've heard a lot this morning and last night about fines, business, industrial action and how the sky is going to fall if this bill is passed. There are millions of workers out there whom we haven't heard anything about—the millions of women, for example, who are hoping for a pay rise, a narrowing of gender equity, an improvement in their circumstances and some flexibility, so they know what their rosters are tomorrow. Could you fill us in on how this bill will assist that group of workers, people for whom this bill holds great potential to improve their lives? I'm particularly interested in gender and women.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator B Pocock, for your constructive work on this issue over a long period of time but particularly since you've been elected to the Senate. The government has made no secret of its desire to get wages moving. Where we see the most acute need is in feminised industries. Australian women are amongst the most educated in the OECD, yet the gender pay gap is currently 14.1 per cent, which means women earn $263.90 less than men per week on average. The total remuneration gender pay gap, based on the Workplace Gender Equality Agency data, is 22.8 per cent, meaning men earn almost $26,000 a year more than women. As you can see, there is a real urgency in how we address this and the need to address this.

To promote gender equality and close the gender pay gap we need to change the law. That is the reality. In the design of these reforms we have deliberately focused on the needs of lower paid and feminised workforces, and we believe the bill we have put forward best deals with those issues. As Senator David Pocock has pointed out in this chamber, some of the very workers who put their health and safety on the line to guide us through the pandemic are struggling, particularly with the cost of living that people are confronting at the moment. That's workers in health care, aged care, disability support, early childhood education and care and other care in community sectors. Part of the discussion we had last night was about attracting worker to these industries as well, because they are areas where we are suffering from a significant labour shortage at the moment. Keeping those workers and attracting new workers to those industries are going to be much easier if they are better paid.

Work in these industries is undervalued because of unfair and discriminatory assumptions about the value of the work and the skill required to do the job. The undervaluation is one of the biggest causes of the gender pay gap, and our reforms take a number of key steps to address it. Another key cause of the gender pay gap is that our laws are outdated and don't support workers with caring responsibilities well enough. We will take a number of historic steps to address these issues: (1) changing the objects of the Fair Work Act to include gender equality, (2) fixing gender pay equity and creating new expert panels, (3) fixing bargaining for low-paid feminised sectors through our new support stream, (4) banning pay secrecy, (5) stamping out sexual harassment and (6) providing greater access to flexible work. That's what the focus of this bill is. That's why it is important. That's why it's urgent that it be passed. That's why the government have made it a priority since we were elected.

James McGrath (Queensland, Liberal National Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

Senator Pocock, I've already indicated I'm going back to Senator Hanson; I note you want the call. Senator Hanson.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Listening to the minister's response about wanting to get wages moving—everyone wants that. The fact is that this could have also been dealt with under the state and federal awards. You could actually move the wages there if you really wanted to.

What Senator David Pocock has said really concerns me because, in a small crossbench meeting that he had with my adviser, with Malcolm Roberts and with some others on the crossbench, he admitted that this bill was being rushed through. He has said that publicly—that there hadn't been enough time for consultation to address it and that, to pull out these things to do with the ABCC and multi-enterprise bargaining, further consultation was to happen. It's quite interesting what he says. He talked about how the motion to extend the committee hearing date last week wasn't passed. It wasn't going to get passed in this chamber; it was blocked by Labor, and it was blocked by the Greens. You didn't want to extend the consultation time for the committee to actually hear more about the IR bill. So Senator Pocock's comments are very interesting. He said, after the motion was defeated and after it was clear the bill would be voted on this week, that he did the research. But we're only talking about last week to this week that he did the research. These are his words, not mine. Then he said:

I knuckled down and got to work and tried to get across this issue as best I could to be able to make a decision and vote on behalf of the people of the ACT …

It's not just the ACT, but he admits that he wasn't really across it.

When the ABCC came up in this chamber, we actually spent three months plus on it. We spoke to unions, we spoke to the government, we spoke to advisers, we spoke to businesses—everyone. It took us that long just to get our heads across the ABCC and the impact it has on the construction industry. You can't tell me that a rookie senator in this place, who's dealing with all the other legislation, has got his head around and knows what's happening in this industry. This has been pushed by Labor. I don't know what deals you've done with him, but there's no way in the wide world that he can actually be across this and know exactly what's going on. Not only that; you have Labor, and you have the Liberal-National coalition, but the fact is that we on the crossbench are not beholden to any of the political parties. We actually do represent the over 33 per cent of Australians who voted for us in this last election. To push this legislation through is disgusting; you have not really given big business the chance.

I went to the hearing last week, and I asked some questions. I asked the Fair Work Commissioner, 'Have you ever run a business? Have you ever employed anyone?' They looked at me, stupid. Then they had to say, 'No, I've only been a public servant.' You have really only listened to them. I asked a question about the Public Service. I said, 'Do you realise that right across your own board and The Public Service you don't have enterprise bargaining, because if you work under the E4 or E5, for instance, in one government department, whether it be Defence or another government department, people are paid different wages. That's something I would like the minister to answer: does the bill deal with the Public Service? You're dealing with the private sector. You're telling the private sector what they should be doing. What have you got in the bill to cover the Public Service?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. You covered a wide range of subjects there.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

No, I asked you one question.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I understand that, and I will get an answer for that. In my experience with Senator David Pocock—I'm certainly not going to attack him, like you did—I found someone who is diligent, who is thorough, and who applies himself to the task. He obviously was engaged in discussion with the government and made the decision to support this legislation because he thinks that this is going to deliver for the Australian people, and it's also going to be the focus from our government of getting wages moving again.

The bemusing thing for me is that I hear people say, 'We all want to get wages moving.' I'd be sceptical about the opposition doing that, given their record in government, but when we actually put something forward to do something about it, it's not the right thing. How do you think Australian workers are feeling about that now? For ten years, low wages were a deliberate design feature of the previous government. But, now that we have a government that wants to do something about it and has put forward legislation to do something about, people are saying, 'This isn't the right thing to do.' No-one has put forward any other alternative. This is what we put forward as the government. I've run through some of the reasons we think it will be successful, particularly targeting some of those lower-paid industries and feminised workforces, which we think are so important, and those people who are doing it tough. That's the legislation that we've put forward.

In terms of the Public Service, the Fair Work Act covers the Public Service, as it does other workers in the country.

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

I'm just another rookie in this place, but I want to point out that this bill relies on decades of research about problems for our industrial relations system that have been there for 30 or 40 years. Gender pay equity has sat flat for four decades. Job insecurity in this country is now at a level that makes us an absolute standout in the OECD.

My question, once again, is about millions of people whose experience has not been talked about in this debate today: that's people who are casual, who are on limited term contracts and who have had no security about their work for years over their working lives. They suffer a pay penalty and have insecurity in their jobs. How will this bill help deal with that problem of the 21st century; not the old wars, the wars we're hearing about in other people's questions, but the reality of Australian labour now. How do we get more security there for those millions of workers.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks Senator B Pocock for that contribution. You raise an important issue, and I acknowledge your long history in this area before you got to the chamber. Plenty of us come with experience from before we got here. I think Senator D Pocock would be in that space as well.

It is an important issue, and the Albanese Labor government wants to close the loopholes that are undermining job security and wages. Too many Australians are stuck in insecure work, and that is dragging down wages. In my travels through regional Queensland, I see the prevalence of casual work or labour hire and the undermining of communities that that causes. People are waiting for a phone call to know whether they have work that day, which has a debilitating impact just on surviving. Can I get a home loan? People in the casualised workforce are treated differently.

Once upon a time it was that people in those insecure jobs were students or people looking for some extra pocket money. But now, too often, it's people who are trying to support a family, to run a household, or to get ahead in life. When we think about that, it's the pressures of being part of a family. The rent doesn't operate on a casual basis. The mortgage doesn't operate on a casual basis. They're things that you are responsible for every week or month, depending on what your commitments are. People in insecure work can't take sick leave, can't get a loan, can't get ahead. And there are too many rorts and loopholes that the previous government allowed to flourish. Nearly 27 million employees, or 23.5 per cent of all employees, are casual. These are workers with no paid leave entitlements. Of the 1.3 million low-paid employees in 2021, nearly 60 per cent were employed on a casual basis and around 704,000 casual employees have had regular work with their employer. Nearly two-thirds of these have had regular work with their employer for more than 12 months. It shows you the way these people are being treated.

So, it is something that is important. This bill will focus on improving job security and gender equality by including both concepts in the objects of the Fair Work Act. Part 4 would amend section 3 of division 2 of the Fair Work Act to introduce the promotion of job security and gender equality into the object of the Fair Work Act. In addition, part 4 would amend section 134 of the Fair Work Act to include the promotion of job security and gender equality in the modern awards objective. It would also amend section 284 to include the promotion of gender equality in the minimum wages objective. We are also making bargaining more accessible to those who've traditionally been shut out of the benefits of enterprise bargaining, including workers in low-paid and feminised sectors of the workforce, of which you're well aware.

Job security is at the heart of the government's agenda, and this bill puts job security at the heart of the Fair Work Act by making job security an object of the Fair Work Act. This is more than just a symbolic change. It will now be a legislative expectation that the Fair Work Commission have regard to job security when performing relevant functions. We think that is a very important change for those impacted.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I'm just amazed at what you say about the casualisation of jobs and that type of thing. Let me remind you that it was actually One Nation that pushed for people who are casual, if they've been with the business for 12 months or more, to then have the right to go to the employer and say, 'We want to be classified as full-time employment.' That was One Nation that did that. Aren't you aware of it, Minister? That was actually addressed, so that if people want to move casual to full-time employment they have every right to do it now. But a lot of people wish to stay as casuals because of the pay they're getting, the higher rate of pay that they have at the time. That was something that One Nation did. So, we do care about the workers out there. We do understand the stresses and strains they are going through.

Minister, can you tell me what consultations you had with businesses to ask them whether they can actually afford to pay this, if they're a smaller business competing with a bigger enterprise organisation? What consultation was undertaken and what consideration was taken on whether they can afford the enterprise bargaining agreements that larger organisations have agreed to and that will flow on to them, because 'like minded'? What consultations have been undertaken?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. A very thorough consultation process was undertaken before the introduction, meeting with key business peaks on multiple occasions as well as the ACTU and many business groups representing single interests, such as: Clubs Australia; the Australian Resources and Energy Employer Association; the Australasian Convenience and Petroleum Marketers Association; the manufacturing and insulation association; individual employers, such as Qantas DP World and Team Global Express, formally Toll; the National Women's Alliances, including representatives from Migrant Women in Business, Harmony Alliance, the National Rural Women's Coalition, Women with Disabilities Australia and YWCA Canberra; academics with a focus on workplace practices and law, including Professor Anthony Forsyth from RMIT and Professor Crystal from the University of Sydney; written submissions ahead of the Jobs and Skills Summit, including from peak business groups—34 were sought and 20 received; the Committee on Industrial Legislation, including business representatives from the peak body; the Business Council of Australia; the Housing Industry Association; the National Farmers Federation; the Master Builders, the Pharmacy Guild of Australia, representing COSBOA; the Australian Industry Group; Australian Business Lawyers & Advisers; and the Australian Chamber of Commerce and Industry. The Australian Resources and Energy Employer Association was invited, but did not attend.

From 10 to 14 October 2022, the department held 10 dedicated consultations, including with business peaks and employers—for example, Woolworths, academics, the ACTU, state and territory officials and the National Women's Alliances. In terms of consultation on government amendments: since the introduction on the 27th, the minister's office and the department had at least a dozen further meetings with employers and employee groups to discuss concerns, including with the Franchise Council of Australia, business peaks, BHP, Clubs Australia, Wesfarmers, Woolworths and Coles. Obviously, the Senate inquiry was held as well; it had five days of hearings. My understanding is that there was only a one-day hearing into the bill re-establishing the ABCC.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

It's wonderful that you've given me that list. Just listening it to it, there was Woolworths, Qantas and all these others. My question was, basically, that if something is at the smaller end, can they afford the enterprise-bargaining agreements of the larger businesses? It's just ridiculous to say that you've had all these meetings with these people when the question is, 'Have you actually consulted with these businesses and can they actually afford it?'

If a small business is going to have to get legal advice, consultation and everything they have to go through then you're going to put an extra $14,000 cost on that small business to be able to deal with all this. So my question, again is—and I'll repeat it: have you had any feedback from businesses that are saying they're actually going to have trouble affording this? Will it affect their businesses? Has any business told you that this will impact on them and that it will possibly force them to shut down their business or take it overseas?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Not to my knowledge, Senator Hanson. But I think that the focus and the important thing for smaller businesses to understand is that for cooperative work places, which is where we think small businesses would more than likely end up, it's entirely voluntary. It allows small businesses to opt in to an agreement without having to incur the costs of negotiating it. It gives them access to the benefits of bargaining for productivity, simplicity and flexibility that currently only bigger businesses can access. That is what we feel will be appropriate, and we think that would also be cost-effective at the same time.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I have something else to ask. Did you actually take this into consideration: if you're going to increase wages—and that's what you want to do, to increase wages—there's also a plus-plus-plus on top of that. So it's not just wages; enterprise bargaining means that they could bargain for four days a week or they could bargain for extra holidays. This is all added cost to the employer. But if they actually do increase their wages, have you considered having negotiations or talks with the states? What this is going to do is put added cost onto businesses with payroll tax in the states. Have you taken this into consideration, and have you actually tried to negotiate with the states to look at the payroll tax?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Hanson. The states and territories, as I mentioned when I went through the consultation list before, were consulted as part of the bill.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Sorry, can you repeat that? I just didn't get a word of that.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I just said that the states and territories were part of the list of consultation I ran through previously; I mentioned them as part of that process.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

So the payroll tax, you understand, possibly could have an impact on businesses, because they're going to pay more in wages for the costs involved with all this. You could actually drive it up, and instead of putting more employees on, you're actually going to reduce the staffing levels. Has this been taken into consideration? That's what I want to ask—not about consultation. Was this taken into consideration in the bill that if you're going to drive up wages you're actually going to create unemployment, because businesses will not be able to afford the extra they're going to pay in payroll tax. Each state varies in the amount of payroll tax that businesses pay.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I said, the states and territories were consulted. You would have to ask them their views on that issue.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

You haven't. It was not part of this; you're not interested; you're just passing the buck to the states. They deal with payroll tax. If you put out a bill like this, you have to take into consideration the impact it's going to have on businesses, whether they can afford it or not. I will tell you now, this is going to have an impact on businesses that will have to reduce their staff because they won't be able to afford the overheads and the costs. This is something I have been on about for years and years, about the unfair payroll tax which is destroying workers. They are not employing more staff because they can't afford it with that unfair tax. Tell me also, when an agreement is not reached, can protected industrial action commence?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It would depend on what stream you're referring to. We've been talking about the cooperative stream, because we were discussing small business and that's where we think they would most likely end up. In the cooperative stream, the answer is no.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

This bill goes across, and it says basically businesses who are similar in what they do—if you sell fish and chips, if you sell seafood. You haven't really clearly defined what the similarities are going to be. Does it mean that in producing, whether you're retail or whether you're a restaurant or a manufacturer, or whether you box in the same way, are you in the same shopping centre? You haven't defined what similar entities are. That's not in the bill. You have left it open-ended. Can you explain that part to me? Please define, so businesses out there know what enterprise bargaining agreement they're going to be tied up with another supposedly like-minded business.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It depends on the stream. We were talking about the cooperative stream there, where there is no single interest test there in that space. In terms of other streams, there would be what we call the common interest test, which would be determined by the Fair Work Commission.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

The unidentifiable common interest test. You've left everyone out there wondering what the hell is going to happen here. What I see written over this bill is union, union, union. This is payback from the Labor Party to the unions for all the funding and all the money that they have given you. This is basically about giving the unions the right to walk into businesses and with enterprise bargaining say 'Sign up here'. I can see it now. They're going to walk into the business and say to the employee, 'Do you want higher wages?' Of course they will. Who is stupid enough to say 'No, we don't'? When they get the agreement, they all want higher wages. 'Listen, mate, you sign up to the unions and we're going to go and fight for you for higher wages.' That is written all over this bill. Union, union, union.

I will tell you another thing. We've got a bill that you want to actually get through to this parliament. Where is Senator Pocock? I will tell him also. There are pages and pages of amendments. Even the government amendments are nine pages. You know what that tells me? If you were to go and buy a car and you had all these defects in the car, nine pages—and that's not just Labor; this is the Liberal Party, the Greens, David Pocock and Jacqui Lambie, all these amendments—'Listen, with this car, we're actually going to make changes here; these are the defects,' you know what it'd tell me? You're buying a frigging lemon. That's what it would tell me, and that's exactly what this bill tells me—that you have not researched it properly. You're rushing it through this parliament. You've got a rookie senator that you've talked into supporting this bill, and it's a real shame.

You cannot guarantee the people out there that they are going to get a rise in wages. There is a lack of workers out there. I'll inform you what's going on. A lot of businesses are actually paying their workers above the award just to get good staff. They want to hold onto them, so they are paying a lot of them above the award and all the other agreements—plus, plus, plus—that they want. But I'll also tell you what you're going to tie up here, because I've been a small-business person most of my life. You're going to have enterprise bargaining right across the board with a lot of these workers as well, instead of a single enterprise agreement with the worker. A lot of the workers are no-hopers, the ones that do not do a decent day's work. If you've got one person who works their guts out and does a good job and the other ones beside them are on their phone all day and don't work, productivity is down the bloody drain. You're going to tie them up into getting the same pay, the same rights, the same everything. That is going to really upset the worker who does his job and takes pride in his work and productivity, and that's what's going to happen as well.

This whole bill stinks. As I said, the Public Service hasn't even got its own act together. I say to you, clean up your own backyard before you start telling private enterprise how to run their businesses and whether they can afford it or not. You're going to drive a lot of these businesses into the ground who can't afford it, and you're pushing this onto them. You are actually going to create unemployment with this bill. It is ill thought out. It is not dealing with the real issues. There is not enough consultation. You're going to get rid of the ABCC because it suits the CFMMEU to get rid of it. They won't have to be answerable to anyone. They are nothing but thugs—not all; I'm talking about the officials—on these building sites that have destroyed small businesses. It has driven up the cost on these building sites by 30 per cent, and that's going to be the same effect again. Yet you think it's a good thing?

On your promises, I'll tell you, you don't have a mandate. When only 32 or 33 per cent of Australians voted for Labor, you don't have a mandate at all—not at all. The system got you the seats in here that give you government. That's not a mandate to me. A mandate is 50.1 per cent of the vote. You didn't get that. I don't believe you're listening to the Australian people.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I don't know where to start with Senator Hanson's contribution there. I could probably go for a while with a lecture on how democracy works. I don't think any government in Australia has got 50.1 per cent of the vote for a fair while, Senator Hanson.

When I see this bill—I know you said you see unions—I see workers throughout it, because that is who we want to support. More importantly, I see a bill that is designed to ensure people do get that wage rise, and that is what we are absolutely dedicated to doing. That is the focus of what we want to achieve through this. Again, I mentioned earlier that everyone tries to claim they're for wage rises, but then they keep coming up with a thousand excuses why they don't support them. We are unashamedly in favour of them. I think one of the clearest memories for the Australian people during the election campaign was the now Prime Minister holding up a dollar, and that resonated with the Australian people. I have no doubt that there is support across the community. There is obviously the support in this chamber, and that's the way our democracy works, Senator Hanson.

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

Before I go back to questions on the ABCC: Senator Hanson has raised questions in relation to the common-interest test in the single-interest stream. After the questions that were asked last night, Senator Sarah Henderson was actually approached by the Geelong Manufacturing Council. She has the media release; I could just refer you to the Geelong Manufacturing Council's media release of 23 November 2022. Minister, are you aware of a request by the Geelong Manufacturing Council to exclude the manufacturing sector from aspects of this bill, including the multi-employer bargaining provisions?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'm not aware of that specific one you've talked about, but I am aware that other industries have put forward similar cases.

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

When you say 'other industries', for the Hansard record could you take us through what other industries have put forward the case that they should be excluded, given that there is a civil construction carve-out—and we will go through the reasons later as to why you determined that. What are the other industries?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I am aware of mining. I will see if I have any further advice.

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

Just in terms of the Geelong Manufacturing Council: in their media release they raise a number of serious concerns, including in relation to:

Senator Hanson has just referred exactly to what their concerns are in that regard—a centralised setting of terms and conditions, a one-size-fits-all policy that doesn't fit all employers—

reducing individual enterprise-level autonomy and competitiveness.

Did the government give any consideration to excluding the manufacturing sector from the multi-employer provisions in the bill?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

No.

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

With respect to the definition of 'common interest', they've given some very specific questions they would like an answer to. I will just run through them. Does the shoe manufacturing business EMU Australia, headquartered in Geelong, have a common interest with Boundary Bend Olives, a manufacturer of olive oil, based in North Geelong? The key words there are 'a common interest'.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We believe in giving the Fair Work Commission a reasonable level of discretion on this. We've deliberately provided discretion to the commission to determine in any given set of circumstances where there is a clearly identifiable common interest between the employers, and whether or not the bargain is contrary to the public interest and whether or not the employers in question are reasonably comparable.

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

So, again, you're not able to actually answer the specific question. We did go through this yesterday with Senator Watt. The answer, though, again, is: it is ultimately at the discretion of the Fair Work Commission. Senator Sarah Henderson has just joined us in the chamber. Senator Henderson, just so, for your constituents, you understand what the answer is, the answer to the first question—does the shoe manufacturing business EMU Australia, headquartered in Geelong, have a common interest with Boundary Bend Olives, a manufacturer of olive oil based in North Geelong?—is: that is a decision at the discretion of the Fair Work Commission.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

No certainty?

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

Yes—no certainty at all for them. Let's see if we can get some certainty for the next group of employers that have put forward this question: does the manufacturer Backwell IXL, based in South Geelong, which manufactures a range of products, including homewares and steel fabrication, and which employs around 60 people, have a common interest with the oil refinery Viva Energy, based in North Geelong, which employs about 700 people?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Same answer as before.

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

Senator Henderson, could I just confirm for the Hansard record: there is no further guidance that can be provided to these employers who have come to you. The government doesn't have any further guidance in relation to what the common interest is, whether it is regulatory or, in this case, potentially geographic, as you're putting forward because they're in your electorate of Geelong—

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

Senator Cash, I ask you to put your comments through the chair.

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

I'll put your comments through the chair. They unfortunately don't change. That is at the discretion of the Fair Work Commission. Can I therefore go to this proposition that has been put forward to Senator Henderson. Does AKD softwoods, based in Colac, Australia's largest producer of softwood timber, with more than 1,000 employees, have a common interest with Bulla Dairy Foods, a large manufacturer of ice cream and other dairy products, also based in Colac?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Same answer as previously.

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

For the benefit of the Hansard record, because I don't want to verbal you, can I confirm that there is no further guidance that can be provided, that it is ultimately at the discretion of the Fair Work Commission to determine whether or not they have a common interest.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We've already answered that question.

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

I would just ask you to say yes. I don't want to verbal you when we go back to these people. That's why—

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

On the specific.

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

On the specific cases—I don't want to verbal you. If the answer is yes, I will accept it's yes, but I don't want to verbal you.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We've already answered that question.

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

I'm going to have to take it that the answer is yes because that was the answer given yesterday, that there was no further guidance and it was at the discretion of the Fair Work Commission. Can I now turn to the definition of geographical area. Is the shoe-manufacturing business—that was actually the same question.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

Yes, but just in the same geographic area.

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

This is the geographic area.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

Yes.

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

Is the shoe-manufacturing business EMU Australia, headquartered in central Geelong, in the same geographical area as Boundary Bend olives, a manufacturer of olive oil based in Geelong? So now we're looking at the geographical area.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Same answer, again.

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

It is left to the discretion of the Fair Work Commission, so there is no further guidance that can be given in relation to that particular example. Is the manufacturer Backwell IXL, based in south Geelong, which manufactures a range of products including homewares and steel fabrication and employs around 60 people, in the same geographical area as the oil refinery Viva Energy, based in north Geelong, which employs around 700 people?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Same answer, again.

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

Again, there is no further guidance that can be given. It is left to the discretion of the Fair Work Commission. In relation to the definition of, or further guidance even in relation to geographical area, is AKD softwoods, based in Forest Street, Colac, Australia's largest producer of softwood timber, with more than 1,000 employees, in the same geographical area as Bulla Dairy Foods, which is located in Connor Street, Colac, about three kilometres away.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash—same answer, again. I was paying attention last night. You traversed a lot of these issues with Senator Watt, and I think it was a similar response at the time.

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

That is correct. I wanted to ensure that, overnight, you couldn't suddenly provide further detail or clarification in relation to some specific examples. That's fine. So we can now go back—we've been asked to put these questions—and say: 'There is no further detail. There is no further clarification. The answer is consistent: it remains at the discretion of the Fair Work Commission.'

Just in terms of my questions to you that Senator Henderson had provided, I asked you: 'Had the government given consideration to excluding the manufacturing sector from the multi-employer provisions?' The answer to that question was no. Did the department provide any advice to the government about how this sector could be excluded or carved out?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

No.

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

Did the department provide the government with any advice in relation to how the mining or the mining and resources sector could be carved out?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that Senator Watt dealt with this issue last night, and I have nothing further to add to his explanation.

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

I didn't ask Senator Watt a question in relation to what departmental advice was provided to the government about how these sectors could or could not be carved out. This is the first time I'm asking this particular question. So, Senator Watt did not give me an answer last night. You have now stated that you are aware that certain industries did make representations to government in relation to potential carve outs. You said you've got one for me—mining and resources. You said you're not aware of manufacturers putting any request in to government. You've said you'll go away on notice, and the good news is that we're open-ended tonight, so we'll be able to get that information if not shortly then after question time in relation to the other sectors that approached the government and asked for a carve out. This is information that you've given me that I'm now questioning you on. So, I ask again: did the department provide any advice to the government about how the mining or the mining and resources sector could be carved out or excluded from the single-interest multi-employer bargaining stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

There was general consultation but no advice from the department, is my understanding.

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

But you are aware of representations made by the mining and resources industry in relation to—very similar to civil construction—how they could actually be excluded from multi-employer bargaining?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think in my answer to Senator Hanson's question I talked through that—that industry was consulted.

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

So, you are confirming that they made representations and that they should be—similarly to the civil construction industry that we discussed last night—excluded from multi-employer bargaining? I'm not verballing you; I just want to make sure I understand that you were aware of those representations.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Correct.

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

There is a carve out for civil construction et cetera, and we did go through that last night and will explore that a bit more this afternoon. Can I confirm, then, that there is no carve out or exclusion for the mining and resources industry in terms of multi-employer bargaining?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's correct.

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

Given the front page of the Australian and in particular the concerns raised by Mike Henry in relation to BHP and given the concerns also raised by Rio Tinto—one's the west coast and one's the east coast, obviously—and given the evidence in relation to why there is a carve out for civil construction that was provided by Senator Watt last night, and it was because, without verballing, him, of the high use of agreements at an enterprise level that had been negotiated, I think Mike Henry might argue that within the mining and resources industry on the east coast and in particular for BHP there is a very high use of enterprise bargaining agreements. So, why did the government ignore the concerns of these industries?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I believe Senator Watt dealt with this last night, and I have nothing further to add to his answers.

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

Well, unless Senator Watt is talking to the shaman, he definitely had not seen, in questioning yesterday, the front page of the Australian. I accept that you take advice from shamans, spiritual healers, magicians, dog walkers and dog trainers regarding costings for your regulatory impact statement. But, again, I didn't put the front page of the Australian to Minister Watt last night, unless we were sitting at 1 am, which I don't believe we were. So, again, regarding the front page of the Australian, on the issues raised by Mike Henry on behalf of BHP, which have also been raised on behalf of Rio Tinto, the evidence that was given in relation to the rationale behind the government carving out the civil construction industry from multi-employer bargaining was that there is a high use of enterprise bargaining agreements. As I said, Mike Henry, on behalf of BHP, would argue there is a very high use of enterprise agreements in the mining and resources industry on the East coast. Why did the government ignore the concerns of those industries when it was prepared to carve out the civil construction industry?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think Senator Watt traversed these subjects last night. With regard to the article in the Australian, BHP and Rio Tinto are entitled to their views.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

Just picking up on the issues with the manufacturing sector, if a Geelong manufacturer is compelled to bargain with Viva Energy, a large oil refinery in Geelong—I have been advised, a short time ago, by one employer that if it was required to match the same terms and conditions as those offered by Viva Energy, including up to two years severance pay, that would force this business to close. How can Geelong manufacturers be given certainty that they won't be placed in this situation and forced to close if required or compelled to bargain with the likes of Viva Energy in Geelong?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

What you've put forward there is a hypothetical.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

With respect, that's completely incorrect. I have just put to you a particular case. I have literally got off the phone from a Geelong manufacturer—the Chief Executive Officer and proprietor—who has said to me that if this business was required to bargain with Viva Energy and match the terms and conditions that are offered by Viva Energy to its employees, which include up to two years of severance pay, then that business will be forced to close because it cannot carry that level of contingent liability. Again, this is not a hypothetical. How will you give manufacturers in the Geelong region the certainty that they will not be placed in that situation, so that they can have certainty as to their future?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think the key word in your question was 'if.' It obviously and clearly was a hypothetical situation that you were putting to me and that is my response.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

That's a ridiculous answer, with respect. These laws are not in effect as yet, but if these laws are passed, as I assume they will be, and Geelong manufacturers are required and compelled under your laws—they are a manufacturer which employs more than 20 people. If they are required and compelled to bargain with Viva Energy—please provide this chamber with the advice as to how Geelong manufacturers can be given certainty that they won't be placed in this situation and be forced to close. The response that you gave before is totally inadequate and does not address my question. I would ask you to address my question.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It is a hypothetical proposition that you are putting to me. In terms of a single interest test, if an employer does not want to bargain for a single interest multi-enterprise agreement there are factors the Fair Work Commission must be satisfied of before granting an authorisation, such as the majority of employees must want to bargain; if the business is in a franchise, the business is reasonably comparable with other businesses to be covered by the agreement and the employers have clearly identifiable common interests; and it is not contrary to the public interest. Again, that's a level of information for you. But I won't answer the hypothetical situation that you're putting to me.

Sarah Henderson (Victoria, Liberal Party, Shadow Minister for Communications) Share this | Link to this | Hansard source

No, I'm not putting a hypothetical situation, Minister, and it seems to me that you are failing to address this question. These are real-life fears in the Geelong community about Geelong manufacturing.

The former coalition government inherited a situation where, when we came into government in 2013, Ford had announced it was closing—on Labor's watch. We came into government in 2013 when Geelong was on its knees. Manufacturers had no confidence in the future. We worked extremely hard as a coalition to turn the economy around locally. Now we have a vibrant manufacturing sector, which is also working well together.

Now, under these laws, your government is proposing to pit manufacturer against manufacturer, to create a war, an industrial war, in Geelong. We are one of the most successful manufacturing regions in the country. The fact that you, under your laws, cannot provide Geelong manufacturers—or, in fact, any manufacturer around this country— with any guidance is a disgrace.

I am not posing hypothetical questions, and, with respect, your answer was pathetic. It shows how little this government cares about manufacturing. It is ridiculous that your government and you as the responsible minister, the acting minister, cannot tell Australians or AKD Softwoods—an incredible company based in Colac, supported heavily by the former coalition government, which has grown exponentially and is now the largest producer of softwood timber in this country, with more than 1,000 employees—if this business is in the same geographical area as Bulla Dairy Foods, which is located three kilometres away, in Connor Street, Colac? That is absurd.

So I would invite you to provide manufacturers in Victoria, including in the Geelong region, with the certainty that they require so that they know that perhaps their futures are assured. Right now, in the offices of the Geelong Manufacturing Council and in the offices of every manufacturer in Geelong and across Victoria, and, frankly, across this nation, there is deep fear. So, again, I ask you to address the question. And, if the answer is, 'This is a matter for the Fair Work Commission,' then that's fine, but please address the question.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I've already answered the question that was put.

It doesn't take long for them to get back on the scare campaign, because that's all they've got. They've learned absolutely zero from the last election campaign. If Geelong was going so well, how'd you get voted out? What happened there? If Geelong was going so well, how did you get voted out? Clearly they were not happy with you and clearly the local workers weren't happy with you and clearly the local manufacturing workers weren't happy with you as well.

The good news I have for manufacturing workers in Victoria, in Geelong and across the country is that they now have a federal government that is absolutely committed to working with them and rebuilding manufacturing in this country. That is what will be a focus.

I have the assistant minister for manufacturing in the chamber as well, who is working very diligently with this. I saw that Minister Husic put forward the legislation yesterday implementing our election policies. I am absolutely confident that the manufacturing sector in Australia will be very, very well supported by this government. We have big plans that we took to the election and we intend to deliver on them. And I'm sure the manufacturers of Geelong will be very excited by that.

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

We were previously talking about the carve-out of civil construction for multi-employer bargaining. You have indicated that you were aware that the mining and resources industry had provided representations to the government in relation to being carved out, you weren't aware if representations had been made by the manufacturing industry and you'd come back to me in relation to other industries.

Again, as discussed with Senator Watt last night, the rationale for the carve-out of civil construction from multi-employer bargaining was the high proportion, percentage or number of single-enterprise agreements in the sector. Could I therefore ask that you bring back to the chamber the number of single-enterprise agreements in the construction, mining and resources, and manufacturing sectors so we can do that comparison to civil construction?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We'll see what we can provide.

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

So we probably won't get anything, I'm assuming, which is a great shame. But we can do the analysis afterwards.

Senator Henderson was talking about numbers of employees in businesses. One of the amendments that was, I understand, negotiated with Senator Pocock—I think it was also the recommendation of the Labor members of the committee that looked into the bill—was increasing the employee headcount of businesses who will be excluded from multi-employer bargaining to 20. Can you confirm how the government came to this specific number?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Obviously, we take Senate inquiries very seriously, and it was changed on the recommendation that they made.

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

So can I confirm that this was not part of the deal done with Senator David Pocock; this was actually part of the recommendation of the Senate inquiry?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's correct.

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

Was any assessment, consideration or modelling undertaken—given all the concerns, when the legislation was initially tabled, in relation to the definition of 'small business' in this particular section—of increasing the headcount to, say, 25 employees, 50 employees or 100 employees? Did the government undertake any further work in that regard?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Increasing it to 20 excludes 97.5 per cent of small business.

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

Of small businesses?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Of all businesses, sorry.

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

With all due respect, that wasn't my question. My question was: was any assessment, consideration or modelling undertaken—given, in particular, all of the concerns that were raised in relation to the definition of 'small business' in this section—of increasing the headcount to 25 employees, 50 employees or 100 employees, or 125, 150, 175 or 200? If the answer is none, I can accept the answer as being none. But was there any assessment, consideration or modelling undertaken?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that in the Fair Work Act it's currently 15, and we based our decision to go to 20 on the recommendation from the Senate inquiry. That was the substance of our decision-making.

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

Again, I don't want to verbal you for the Hansard record. So there was no assessment, consideration or modelling undertaken by the government in relation to increasing the headcount to, for example, 25, 50 or 100 employees et cetera; you accepted the recommendation of the committee?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

There was some consultation with the department. But that was our decision-making process that I ran through before.

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

r CASH (—) (): In relation to the consultation with the department, was any consideration given to, again, 25, 50, 75, 100 employees—any number above 20 employees?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I would just refer to my earlier answer about the recommendation from the Senate inquiry. That was the basis of our decision on the 20.

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

I said I had a very long line of questions in relation to the transfer of powers—

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

Senator Cash, just before you continue: I notice Senator Barbara Pocock has left the room, but we had an agreement that when you went to a new line we would pass the call. When she does comes back in, I'm conscious that she has sought the call a couple of times.

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

I'll just go back to the line of questioning in relation to the Australian Building and Construction Commission. Maybe it will assist the minister in answering the questions if I also then refer to the sections in the BCIIP Act which I'm referring to so that we can actually determine whether or not there is that transfer of powers to the Fair Work Ombudsman.

This relates to sections 54 and 55 of the BCIIP Act. The ABCC would take action to seek injunction and to bring prosecution seeking penalties on behalf of an affected subcontractor. Can I just confirm, in relation to sections 54 and 55, that those actually transfer over to the Fair Work Ombudsman?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. There is no transfer of powers. The powers already exist in the Fair Work Act. The Fair Work Ombudsman is an independent and well-resourced regulator who we expect to do that job.

The key relevant general protections in the Fair Work Act are part 3-1, division 4, about inclusive activities. Section 346 says:

A person must not take adverse action against another person because the other person:

…   …   …

(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

Section 347 says:

A person engages in industrial activity if the person:

…   …   …

(e) complies with an unlawful request made by, or requirement of, an industrial association; or

Section 348, about coercion, says:

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

The penalty for that is 60 penalty units, and section 539 of the Fair Work Act can make application to enforce.

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

Who actually brings the adverse action claim?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It would be an employee, an employer or an employer organisation, the Fair Work Ombudsman or an inspector.

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

I just want to confirm that. You're saying that the Fair Work Ombudsman can bring the adverse action claim?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Correct, Senator Cash.

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

With respect to employers within the building and construction industry, can I get you to detail what powers are available to the Fair Work Ombudsman to take action in relation to union officials restricting or threatening to restrict a subcontractor's opportunity to obtain work if it did not sign up to a union endorsed EBA? And, in particular, the issue I want to home in on is what the difference is between the powers of the ABCC and the Fair Work Ombudsman.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Those key relevant general protections that I outlined earlier are appropriate.

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

It doesn't really answer the specific question, though. Sections 54 and 55 of the BCIIP Act—the ABCC will take action to seek an injunction and bring prosecutions seeking penalties on behalf of an affected contractor. The ABCC could also be required to ensure competition laws are upheld and would refer any related issues to the ACCC for investigation. The code required that employers maintain compliance with competition laws at all times, and non-observance is sanctionable. That was under the BCIIP Act. The act is being abolished. What is now the difference between what was under the BCIIP Act in terms of what I read out and what is now the power of the Fair Work Ombudsman?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The Fair Work Ombudsman can enforce any breach of the Fair Work Act.

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

Again, though, we go back to: is it mandatory for the Fair Work Ombudsman to do this, or is it at the discretion of the Fair Work Ombudsman?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It is at the discretion, exactly the same as it was under the ABCC.

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

All of the questions are prefaced with 'with respect to employers within the building and construction industry'. Can you detail what powers were available to the Fair Work Ombudsman to take action in relation to union officials pressuring head contractors to replace subcontractors on a site because they did not have a union endorsed EBA? Can the Fair Work Ombudsman represent employers?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Previous answer, Senator Cash, but the Fair Work Ombudsman would enforce against any breach of the act by any person.

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

Can the Fair Work Ombudsman represent employers?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

He represents himself, so he institutes proceedings.

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

With respect, again, to employers within the building and construction industry, what powers are available to the Fair Work Ombudsman to take action in relation to the threat by union officials to prevent subcontractors with particular types of employment categories, such as casual employees, from working on a site? In particular, can you take me through the difference between the powers that the ABCC had to gather evidence and the powers that the Fair Work Ombudsman will have to gather evidence?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The Fair Work Ombudsman would treat them the same as any other industry.

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

In terms of the powers, is there a difference in the powers to gather evidence that the Fair Work Ombudsman has and the ABCC had?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As you would be aware, we've long been of the view that the powers previously were excessive. We believe now there will be adequate powers under the legislation that we've had. We believe all workers should be treated fairly and evenly across the country.

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

Again, that wasn't my question. I just need to understand what powers the ABCC currently has in relation to gathering evidence and the translation over. I accept the powers are less, but I do want to understand what the difference in the evidence-gathering powers is.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Just to be clear, Senator Cash, there was no transfer of powers. What we're saying is the Fair Work Act has the necessary powers it needs to ensure that all workers are treated fairly but also that workplaces are regulated accordingly.

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

Can I just confirm the statement that you had made? You had previously said you were confident that there was no gap or difference between the ABCC and the Fair Work Ombudsman and the powers that could be exercised. You have now gone to saying, if I understand you correctly, there is a difference, so they won't have the same powers and they'll have only the powers of the ABCC that the government believes are not excessive. I'm trying to explore. We were at the stage where you were confident there were no gaps, but now you're actually saying there are gaps. Can I get you to take me through, in particular in relation to gathering of evidence, what powers you believe are excessive, just so I can get a better understanding of that.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. As you'd be well aware, the now government has been of the view for a long time that the ABCC is ineffective and was a waste of taxpayer money. It has been a disaster for productivity in the sector and did little to address exploitation of workers through wage theft and sham contracting, which has been allowed to run rife, with often devastating consequences. The government stands for safe, fair workplaces for all Australians. Under our government the Fair Work Ombudsman will enforce the Fair Work Act across all industries. Offensive behaviour has absolutely no role in our society. Criminal conduct on worksites is wrong, and the police should and will continue to take appropriate action where it concerns. The ABCC, I would point out, has never had a role in enforcing criminal laws.

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

nator CASH (—) (): Again, with all due respect—thank you for reading the talking points that we're provided, and I have no issue with talking points being provided by the advisers to you—that wasn't actually the question I asked. There is a difference in the powers that were able to be exercised under the BCIIP Act and the powers that the Fair Work Ombudsman is able to exercise, and I just need to understand what powers you believe are excessive.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I've said, we believe that the provisions of the Fair Work Act are what will ensure that all workers are treated evenly across all sectors of the economy, and that is what we are supporting as part of this legislation today.

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

Again, with all due respect—I know Senator Barbara Pocock has returned to the chamber, and we had agreed that we would cede time to Senator Barbara Pocock—I will come back to the question. The talking points don't answer the question. The question was specific. You've admitted that there are gaps, even though your evidence earlier this morning was that you were confident there were no gaps. I'm happy to accept the change in evidence. There are now gaps. I'm assuming that you're of the opinion it was merely the vibe of the ABCC that was excessive, but the issue does become that there is a difference. You've stated there is a difference. I am asking you what powers you thought were excessive. I'm happy for you to come back to that, because we had an agreement that I would cede time to Senator Barbara Pocock.

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

I'm willing to wager that most Australians won't know what the ABCC is. But an issue which has had no discussion, in the seven or nine hours of questioning that we've had so far, is from two sections in the bill, in relation to sexual harassment. Now, 53 per cent of Australian women will experience sexual harassment in their lives and it's an issue that really does deserve some discussion. How will this bill deal with this epidemic of sexual harassment? More than half of us are going to have the experience, including many in this workplace, and a third of Australians—men and women—in the last five years have had harassment experiences. So can we please hear a little bit about something that actually matters to most Australians?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

HISHOLM (—Assistant Minister for Education, Assistant Minister for Regional Development and Deputy Manager of Government Business in the Senate) (): Senator B Pocock, I thank you for your interest in this area, and I acknowledge your longstanding history of working in this space as well. I think it is an important aspect of this legislation. Stamping out workplace sexual harassment is central to achieving safe, productive and gender-equitable workplaces. That is what the government is committed to.

Under the previous government's laws there was no express prohibition on sexual harassment under the Fair Work Act and stop-sexual-harassment orders were only available to some workers. We will fix these issues. Firstly, we will broaden the scope of stop-sexual-harassment orders to make clear that the Fair Work Commission has the power to make orders preventing sexual harassment for all workers, including sole traders, employees of state governments, local government employees, workers in community organisations and workers in workplaces such as amateur sporting clubs. Examples of stop-sexual-harassment orders could include an order that individuals treat each other with respect or do not make contact with each other, or orders for companies to provide all staff with anti-sexual-harassment training or to arrange a health and safety inspector to attend meetings and parties. This is a key measure of how we can make workplaces safer.

Secondly, we will add the new prohibition on sexual harassment and a complaints process which will allow all workers, including those sexually harassed in the past, to apply to the Fair Work Commission for a remedy. Workers will have access to conciliation and arbitration by consent. Thirdly, our new provisions are broader in scope than the previous government's laws applying to conduct that occurs in connection with work and are consistent with protections in the Sex Discrimination Act. This means that protections will clearly apply to workplace sexual harassment that occurs outside of working hours or in employer provided accommodation, and to prospective workers as well.

These changes send a clear message that workplace sexual harassment will not be tolerated. Our changes will open a new pathway for people to get an outcome without having to go through the court system, which can be slow, costly and traumatic. That's a huge barrier for many workers, particularly those in lower-paid or insecure jobs. Our changes mean that every worker—whether they're a nurse in Tamworth, a plumber in Perth, or an office worker in Canberra—can ask the Fair Work Commission to deal quickly and effectively with their complaint of sexual harassment, whether the harassment occurred in the past, is ongoing or both. The new provisions also allow for the national workplace relations regulator, the Fair Work Ombudsman, to investigate and assist with compliance.

Importantly, these reforms fully implement recommendation 28 of the Respect@Work report, complementing the Attorney-General's reforms to the Sex Discrimination Act, which passed the parliament. The bill also strengthens the Fair Work Act's antidiscrimination protections to include gender identity, intersex status and breastfeeding, bringing it in line with other Commonwealth antidiscrimination laws.

The government is serious about ensuring Australian workplaces are free from sexual harassment in all forms of discrimination, and if we successfully pass this bill I think it will send an important message to the Australian people as well.

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

Turning to another section of the act—and we will come back to the ABCC—before we hit the hard marker of 2 pm, I want to ask some questions in relation to supported bargaining, or the supported bargaining stream. Can the minister confirm which industries the government intends will be eligible to participate in the supported bargaining stream? I note, from the revised explanatory memorandum at page 168, reference is made to aged care, disability care and early childhood education. Is this an exhaustive list—in particular I am being asked by industries, 'Would we be an industry eligible to participate in the supported bargaining stream?'—and are there any other industries that may fall under this stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Sorry, did you mention a particular industry, Senator Cash?

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

We're into the supported bargaining stream now. Can you confirm which industries the government intends will be eligible to participate in the supported bargaining stream? Again, I was noting, in looking at the revised explanatory memorandum at page 168, reference is made to aged care, disability care and early childhood education. Is this an exhaustive list, and are there other industries that may fall under this stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The focus of that stream is low-paid, feminised workers who are also government supported. It would be a matter for the Fair Work Commission.

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

That's what I want to work through. I'm just going to get page 168 of the revised explanatory memorandum. In the revised explanatory memorandum, you make the specific reference to aged care, disability care and early childhood education. But what you're saying is it's not an exhaustive list. I've got a number of industries coming to me and saying, 'Is this an exhaustive list?' It's not an exhaustive list. Can you give any further guidance than what you've just given to any other industries that may fall under this stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That is the focus of that stream. We've included a ministerial declaration for supported bargaining. This arose out of consultations that have occurred in relation to the bill. The purpose of the new power to make a declaration is to provide a final safeguard to ensure the supported bargaining stream is used in order to get wages in low-paid sectors moving. It is intended to provide some security so that we do not see a repeat of what occurred under the existing low-paid stream, where there were only four applications and no agreement ever made in reliance on low-paid authorisation.

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 in relation to the ministerial power; I will take you through them. Could I just go back to 'it is eligible to participate in the supported bargaining stream'. I have the paragraph in the explanatory memorandum:

The supported bargaining stream is intended to assist those employees and employers who may have difficulty bargaining at the single-enterprise level. For example, those in low paid industries such as aged care, disability care, and early childhood education and care who may lack the necessary skills, resources and power to bargain effectively. The supported bargaining stream will also assist employees and employers who may face barriers to bargaining, such as employees with a disability and First Nations employees.

I just want to confirm—I think you've actually given me the answer—that it is not an exhaustive list, that there are other industries that may fall under this stream and that there are ways—and we'll go through them—that those industries could be prescribed.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Yes, that's correct.

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

Is it the intention of the government to cover all industries where employees are paid just above the modern award minimum rates?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

OLM (—Assistant Minister for Education, Assistant Minister for Regional Development and Deputy Manager of Government Business in the Senate) (): That would be at the commission's discretion.

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

When an application for a supported bargaining authorisation is made, the Fair Work Commission must consider whether it's appropriate for the parties to bargain together. In doing so they must consider a number of factors. The factors are set out, including:

and that's why I asked whether it is the intention of the government to cover all industries where employees are paid just above the modern award rates—

and we'll go through that shortly—

Can I just ask you to confirm what is actually meant by 'prevailing pay and conditions in the relevant industry'? How does the government intend for the Fair Work Commission itself to interpret this?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'd refer to section 891 in the explanatory memorandum:

The supported bargaining process would operate similarly to the existing low-paid bargaining process. When an application for a supported bargaining authorisation is made, the FWC must consider whether it is appropriate for the parties to bargain together. The FWC would consider the prevailing pay and conditions in the relevant industry, whether employers have clearly identifiable common interests, and whether the number of bargaining representatives would be consistent with a manageable collective bargaining process. The supported bargaining stream is intended to be easier to access than the existing low-paid bargaining stream. The revised criteria for making a supported bargaining authorisation is intended to address the limited take-up of the low-paid bargaining process.

That refers to the process that exists currently.

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

I think we're going to be going around in circles like we were last night. In relation to my question of whether it is an exhaustive list, can I just confirm this again, so I'm not verballing you, for the Hansard record: are you saying that, unless the minister makes a declaration for another industry, the only industries that are eligible to access the supported bargaining stream are those listed in the explanatory memorandum?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That would be up to the Fair Work Commission.

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

I just want to explore that. I thought my question was quite obvious. I just want to confirm this with you. We have the explanatory memorandum. It makes reference to certain industries that we've referred to. We've then established—and we're going to pursue it shortly—that the minister is able to make a declaration for another industry to be eligible to participate in the supported bargaining stream. All I'm asking is: is that the only avenue under which you can be declared eligible to participate—that is, via a ministerial declaration—or is there another avenue? We've talked about aged care, disability care and early childhood education and care. Is there another avenue through which you actually can participate in the supported bargaining stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

OLM (—Assistant Minister for Education, Assistant Minister for Regional Development and Deputy Manager of Government Business in the Senate) (): The Fair Work Commission could make a determination considering the criteria.

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

Thank you. So there are two ways. There is a ministerial declaration here—as I said, we're going to go through the ministerial declaration shortly—or, alternatively, I'm assuming you would make an application to the commission, 'Are we able to participate in supported bargaining?' and the commission would then determine whether you are an industry that is eligible to participate, based on the factors it needs to consider?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Yes, that is the case.

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

I believe the answer to my question on what is meant by 'prevailing pay and conditions in the relevant industry'—given my previous question, 'Is it the intention of the government to cover all industries where employees are paid just above the modern award minimum rates?'—is that it is left to the discretion of the Fair Work Commission.

Is the government giving any guidance to the commission, given that there are now two ways in which you can enter the supported bargaining stream and given that the minister is able to make a declaration—so you'd think the minister might have, in his own mind, an idea of what the guidance is—about 'prevailing pay and conditions in the relevant industry'? Or is it literally going to be left to the Fair Work Commission themselves to make the interpretation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. So, 984 of the explanatory memorandum sets out the conditions:

When considering whether it is appropriate for the employer and employees to bargain together, the FWC would have regard to:

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

Okay, so it's a non-exhaustive list with the catch-all 'any other matters that the Fair Work Commission itself may consider appropriate'. What is meant by 'whether the likely number of bargaining reps would be consistent with a manageable collective bargaining process'? Would it be the case that the Fair Work Commission could not approve an authorisation if it is unlikely that the number of parties involved—whether they're employer reps or union reps et cetera—would be able to reach agreement or otherwise act in an orderly way?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that's already in the act.

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

Unfortunately, I am going to have to get you to take me through what you mean by, 'That's already in the act.' What is meant by 'whether the likely number of bargaining reps would be consistent with a manageable collective bargaining process'? Can you just take me to where that explanation is in the Fair Work Act?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. I'm at division 9, low-paid bargaining, 243(3)(b):

That's what I was referring to.

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

Thank you for that confirmation. I'm just asking, though, what is meant by that? What's the guidance given in relation to that in terms of the change to the supported bargaining stream? Could you just confirm that an employer could be compelled to bargain for a supported bargaining agreement?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That would be for the commission to decide whether it was appropriate.

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

So if they decide that it is appropriate, the answer is, yes, they can be compelled to bargain?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's the same way it works now.

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

Would it be the case that some employers could be compelled to bargain for a supported bargaining stream agreement and a single-interest employer agreement?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. My understanding is you can't do both at the same time.

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

You can't do both at the same time, but when one finishes you could be compelled into the alternative, if that happened to be the case? I just want to confirm that, because this has been raised by a number of people. We are saying that we have an employer eligible for both the supported bargaining stream and the single-interest stream. We acknowledge they can be compelled into either. You are saying though that you absolutely cannot be compelled to bargain in the supported bargaining steam and in the single interest stream at the same time. As I said, this has been asked by so many employers and it would give them comfort to know that that is the case. I want to know, are we formally ruling it out?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That is correct.

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

I note that in deciding whether employers in this stream have clearly identifiable common interests, the Fair Work Commission must consider whether the employers are substantially funded, directly or indirectly, by the Commonwealth, a state or a territory. Is the chamber to take this to mean that if the Fair Work Commission is unsure whether there is a clearly identifiable common interest between the employers, that if the employers are not substantially funded directly or indirectly by the government, the Fair Work Commission should err on the side of not granting the authorisation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

For the purpose of common interests:

For the purposes of subparagraph (1)(b)(ii), examples of common interests that employers may have include the following…

I think 'may' is the point I would make there.

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

I want to go through that. 'May' being the operative word. My question was, is the chamber to take this to mean that if the Fair Work Commission is unsure there is a clearly identifiable common interest, so we don't know—so on that we're unable to determine whether or not there's a clearly identifiable common interest between the employers—and then the employers are not substantially funded directly or indirectly by the government, are you saying the Fair Work Commission should err on the side of not granting the authorisation? So we're not sure if there is a common interest. We do know that they are potentially not substantially funded, directly or indirectly, by the government. Is the guidance then that you should err on the side of not granting the authorisation? And is it the intent of government that the supported bargaining stream focus on funded sectors?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It is focused on funded sectors but is not exclusive to funded sectors.

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

That's where I was getting to. There's a focus on funded sectors but it's not solely focused on funded sectors, which does mean that you can bring in other sectors that are not funded or substantially funded, directly or indirectly, by the government. That's understood there. Is it the intent of the government that the supported bargaining stream focus on funded sectors? The answer is that's not the primary focus. I understand that. A focus on funded sectors, though, is consistent with references in the revised explanatory memorandum and the government's—

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, Senator Cash. Minister.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Just to clarify, we said funded sectors are the focus.

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

Funded sectors are the focus. Sorry. They are the focus—thank you for that correction—but not the sole focus, but not exclusive. Thank you. So other sectors could actually be brought in. The nexus to 'not substantially funded directly or indirectly by government' is not the ultimate determinant factor. It is merely a focus of the stream.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Correct.

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

I want to explore that. A focus on funded sectors is consistent with references in the revised explanatory memorandum and the government's own public statements about this stream being targeted at care sectors, is that correct?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

It would be correct to see that as the focus.

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

or CASH (—) (): But not exclusive, which takes me to the next line of questioning, and this is what has been raised by many in industry. Given the answers to all the questions and in particular that there are changes that are happening to this particular stream, we can't give any further guidance other than what's already in the act in terms of the common interests. Ultimately, decisions are being left to the discretion of the Fair Work Commission. There is a focus on funded sectors, and we agree that's consistent with references in the revised explanatory memorandum and the government's own public statements about this stream being targeted at care sectors. We have established, though, that it's a focus and it's not exclusive. So, can you confirm that the supported bargaining stream is not directed at industries such as hospitality and retail?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think I've outlined what the focus of the government is when it comes to this part of the bill.

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

Again, I understand what the focus is, but in outlining what the focus is you've also put on the Hansard record—and, again, I commenced by saying that the answers given are utilised by way of statutory interpretation and there are possibly going to be a number of issues in relation to the interpretation of the changes to the supported bargaining stream—we've confirmed that yes, there is a focus on funded sectors and it's consistent with references in the revised explanatory memorandum and the government's own public statements about this stream. We have also, as we did last night, confirmed that we can't give any further guidance in relation to the common interest, and what is involved in the common interest. It's either there already in the Fair Work Act or it is being left to a decision of the Fair Work Commission. Unfortunately it's the words 'not exclusive' that are going to pose a huge problem. So, again, can the minister confirm that the supported bargaining stream is not directed at industries such as hospitality and retail?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We don't think it's too far different from the current low-paid part of the Fair Work Act that applies in this space.

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

With all due respect, that is not an answer to the question. There are changes being made. It's not just a name change. Given that you don't think it's any different or very different, can you now take me through the changes that are being made in this legislation to the supported bargaining stream?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The real focus of the changes is removing the red tape so that it can actually be used successfully. That was the failure of the previous government—that you had that part of the legislation in place but no-one was able to use it successfully. So, the focus, from our point of view, is removing that red tape to allow it to be used. And it's got a particular focus, from our point of view, on those feminised industries that a lot of us have talked about substantially last night and today and is a real focus of the bill. And we think that is required and will hopefully drive an improvement in wages.

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

You say you've got a focus on removing the red tape. Again, I need you to take me through what the red tape is that you're referring to.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I think the key point of that would be removing the red tape that allows the commission to be more flexible and provide more discretion to the Fair Work Commission to determine what is appropriate.

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

Thank you. And then I have a question as to whether the minister can confirm that the supported bargaining stream is not directed at industries such as hospitality and retail. You can't give that guidance because what we are actually saying is that it may well be, if certain factors are met, that the Fair Work Commission could make a determination that the hospitality and retail industries are actually eligible to participate in the supported bargaining stream.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That's currently the case under your existing legislation now, that no-one has been able to access, and it will be the case in this. We've made clear our focus is on those care and community industries. We think they are the ones who will be able to use this, and we think it will be of most benefit to them.

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

I appreciate it's answering the questions. Could I now refer to government amendment (40), which was moved last night. This amendment gives the minister power, by legislative amendment, to declare—

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, the minister on his feet, Senator Cash.

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

They're changing over.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I might ask you to start again, Senator.

The TEMPORARY CHAIR: Proceed, Senator Cash.

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

We're in the supported bargaining stream. We've just gone through a number of questions in relation to how you could potentially be deemed eligible to participate in the supported bargaining stream. One of the amendments that was moved last night was government amendment (40). The amendment gives the minister power, by legislative amendment, to declare an industry, occupation or sector eligible for the supported bargaining stream 'if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241'. Could I just get you to confirm: what are the objects in section 241 of the act?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The objects of the supported bargaining stream include assisting and encouraging employees and their employers who require support to bargain to make enterprise agreements that meet their needs and to address constraints on their ability to bargain.

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

SH (—) (): So that is section 241 of the act? Can I just confirm that's what you're reading out—the objects of the division as set out in section 241?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

You've asked a very straightforward question for my second question, but perhaps it's best to explain it this way. Where the objects currently say 'low-paid', they will now say 'supported', and provision (b) is deleted.

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

Would you then agree that a key theme from the objects relates to supporting low-paid employees who otherwise lack the experience, skills and resources to bargain at the enterprise level with their employer?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

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

In deciding whether to declare an industry, occupation or sector eligible for the supported bargaining stream or for supported bargaining, would the minister be required to consider whether the employees in question have previously had success in enterprise bargaining? If there is already an enterprise agreement in place for the relevant employees or for employees within the same industry, occupation or sector, would this mean that the minister is less likely to make the declaration?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The minister would have to have regard to the objects of the act and the objects of that section.

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

Can I also confirm: will the legislative instrument referred to in amendment (40) be a disallowable instrument?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

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

It's very straightforward with you; I'm starting to enjoy this.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It's fast.

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

We were talking about the ABCC. I'm just looking at the time in terms of actually moving through them, because I do also have a number of questions in relation to the regulatory impact statement and the costs in that that I would like to ask you. I will go very briefly to the agreement approval, before I go to the costs in the regulatory impact statement. On page 125 of the revised explanatory memorandum, it states that changes in the bill to enterprise agreement approval requirements are intended to simplify requirements that need to be met for an enterprise agreement to be approved by the Fair Work Commission, which are often regarded as overly prescriptive and complex. One such source of complexity relates to section 181 and the way it's traditionally been interpreted by the Fair Work Commission in relation to which casuals can vote for an agreement. I understand that the government has indicated to employer groups that the changes contained in the bill will mean that the Fair Work Commission will take a less prescriptive approach. Employer groups are asking if that is the indication, that there will be a less prescriptive approach.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes, the approval process is designed to be simpler and less prescriptive.

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

Then, in terms of the indication to employer groups that the changes contained in the bill will mean that the Fair Work Commission will take that less prescriptive approach and, in particular, the issue that is in relation to which casuals can vote for an agreement, the indication to the employers is correct?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

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

Can I then also confirm that the changes will mean that the Fair Work Commission won't fail to approve an agreement because of confusion regarding whether a casual employee is entitled to vote on the agreement or not?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The intention is to streamline the process. However, of course each determination that the commission makes is a matter for the commission.

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

So it went back to the discretion of the commission despite the intention of the government. That's fine. Can the minister confirm that if the Fair Work Commission continues to take a prescriptive approach—and, again, we are talking about the issue in relation to which casuals can vote for agreement, and I do appreciate the very clear evidence, which I thank you for—that the government has indicated to employer groups that the changes contained in the bill will mean that the Fair Work Commission will take a less prescriptive approach? I also understand your evidence in relation to 'Can the minister confirm the changes will mean that the Fair Work Commission won't fail to approve agreement because of confusion regarding whether a casual employee is entitled to vote on the agreement or not?' That is left to the discretion of the Fair Work Commission.

In relation to the agreement approval and the issue of the casuals and the confusion, can the minister confirm that if the Fair Work Commission continues to take a prescriptive approach to the issue of casual voting cohorts, despite confirming the government did indicate to employers that the changes in the bill will mean that the Fair Work Commission will take a less prescriptive approach—noting that obviously it is ultimately a matter for the Fair Work Commission—that the government would then commit to amending the legislation to avoid agreements being rejected by the Fair Work Commission?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The government is confident that the changes that are proposed here will deliver the less prescriptive approach, including in relation to the matters that we've just been traversing. But, of course there is a review programmed in at the two-year level.

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

As part of the review, if the Fair Work Commission was to continue to take a prescriptive approach to the issue of casual voting cohorts, given what the government has confirmed it indicated to employer groups, that the changes contained in the bill would mean that the Fair Work Commission would take a less prescriptive approach, would the government then commit to amending the legislation to avoid agreements being rejected by the Fair Work Commission?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

It, along with other matters, will be a subject for the review, and the government will consider the outcome of the review when it arrives.

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

I will turn to some questions that I put in relation to, in particular, the mining and resources industry in Australia. I think you'd be aware of the front page of the Australian today and, in particular, the comments made by Mike Henry of BHP. They've had the opportunity—it's not BHP. Certain employers in the mining and resources industry have had the opportunity to consider the evidence and the answers that were given to the questions that I asked last night. I have some questions in relation to government amendment (44), which was moved last night. They're in relation to more detail and definition. We didn't get to fully explore this last night, given we hit a hard marker.

We went through the common-interest test last night, and that was fine—left to the discretion of the Fair Work Commission in relation to each limb. We didn't actually get on to looking at what 'reasonably comparable' means. The government last night, at 6.26 pm, I think, tabled its amendments to the bill. The question is currently before the chair. Government amendment (44), which was moved last night, introduces the comparability test. For example, where two separate businesses in the mining industry operate different rostering schedules to create their own efficiencies which are fundamental to their operating models, is this enough for them to be considered not reasonably comparable?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I can confirm that this amendment was developed following representations from industry, and it does go to the questions that you have raised, but ultimately, that determination will be a matter for the commissioner.

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

Amendment (44) reads:

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—

Okay, tick—

the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.

That's the reasonable comparability test that you say will be inserted into the act as a result of the representations from the mining industry. The question I put to you was: where two separate businesses in the mining industry operate different rostering schedules to create their own efficiencies which are fundamental to their operating models—you can see where this is going, because this is very, very serious in terms of 'reasonably comparable'—is this enough for them to be not considered reasonably comparable? The answer you gave was that this amendment had been made as a result of representations from the mining and resources industry, but then you also said it is actually a matter for the Fair Work Commission. Given that this amendment has been put in as a result of the conversations you had with the mining and resources industry, they are the ones saying they are more confused than ever now as a result of this and they desperately need the guidance. In relation to the conversations and the representations, again, I ask you: what further guidance can we give in terms of 'reasonably comparable' or 'not reasonably comparable'? I was part of the talks. The minister's office and the department were part of the talks. We've got an amendment that's been inserted, but there's nothing around the amendment. Or could you take me to the explanatory memorandum and take me through the guidance in relation to 'reasonably comparable'?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I might answer in two ways. The first is, of course, that the commission's required to consider all of the matters that it's required to consider, including a public interest requirement. The amendment would add a new subparagraph to paragraph 249(1)(b), which contains the factors of which the Fair Work Commission has to satisfy itself before making a single interest employer authorisation in relation to a proposed agreement. So the new subparagraph would require the commission to be satisfied that, in respect of each employer, it is a common interest employer and the operations and business activities of that employer are reasonably comparable with those of other employers that would be covered by the proposed agreement that relates to the single interest employer authorisation. So, employers of different size and scale might, depending on all the circumstances, be found to have clearly identifiable common interests for the purpose of bargaining together. The amendment would ensure that the Fair Work Commission must be also satisfied the operations and business activities of an employer are reasonably comparable with the other employers. It may be open to the commission to conclude that, despite two employers of a similar size, scope and scale operating in the same industry, they are not reasonably comparable. That is open to the commission, once the full extent of their business activities and operations are considered.

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

CASH (—) (): I think we've just done a full circle. The amendment, as you have rightly stated, sets out, 'If the common interest test is satisfied'—so we agree that the common interest test has been satisfied. We don't know what that common interest test is; we've got some basic guidance. But let's say, you are right, the Fair Work Commission has made a determination that the common interest test is satisfied. You are now inserting the additional amendment that says:

… if the requirements of subsection (3) are met—

Tick, they've been met—

the operations and business activities of the employer are reasonably comparable …

I agree. I have no issues with you there. But we seem to be a hamster on a wheel again, because the issue that we have is: what is the meaning of 'reasonably comparable'? I will give you another situation. Where specialist contractors are employed under a maintenance contract, these contractors have the same trades as employees in the host company but are specialised to fulfil specific roles—that is, for example, not labour hire. Could those specialist contractors be deemed reasonably comparable to employees in the host company under the legislation? The issue I have with the answer you gave—I agree; it's all set out in the act, but what I'm asking for is where is the additional guidance in relation to 'reasonably comparable'? Another example is two mining companies that compete at this level; they're all paying way above but we understand there is no carve out; the rostering system is different, but it's agreed and it suits those sites. Is that enough to actually have them as reasonably comparable, or does the difference mean they're not reasonably comparable? Ultimately, the words are there, but there doesn't appear to be any guidance given in relation to the words.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

The Fair Work Commission will assess those matters and the other matters that it's required to assess. On this side, we place great confidence in the independence and the capacity of the Fair Work Commission. Over the last few decades, I think the historical record demonstrates that we treat that independence seriously. You'll find that, when Labor was in government the last two times, we took industry and the industrial relations community seriously. We took expertise and independence seriously. You'll find that people with great capacity from the trade union movement, from employer associations, from the community sector and from the legal fraternity were appointed by previous Labor governments, with an ethos of independence and a commitment to the public interest. That wasn't demonstrated by the last government. I think 11 out of 44 appointments were not friends of the previous government and from employer associations. The last government treated the Fair Work Commission the same way it treated the Administrative Appeals Tribunal. That has undermined industry's confidence in the independence of that institution. But on this side we put some faith in the capacity of the commission and its full bench to work through these issues in a sensible, pragmatic kind of way.

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

I don't know if you were here last night or earlier today when I said that the questions I ask are very specific, they're very genuine and they're in relation to statutory interpretation going forward, given that the records of Senate proceedings—including the records of where we are now, in the committee stage—can be utilised by others when they're interpreting what the government's amendments mean. I think you actually do political diatribe better than Senator Watt. I really do. I prefer your approach to it. But it doesn't assist statutory interpretation. It'll just be no, no, no, no. So now we go back to the actual answer to the question. To assist those going forward in terms of statutory interpretation, I just need to take you through this. This is a substantial amendment. You've had to bring forward this amendment because of representations made to you by particular industries. The issue I'm having is: the chamber doesn't have the benefit of a definition in relation to what 'reasonably comparable' actually means. With all due respect, I'm not asking you about appointments to the Fair Work Commission. I'm not going to question whether or not someone has expertise. I'm asking you: what is the guidance the government is giving to the Fair Work Commission in relation to 'the operations and business activities of the employer are reasonably comparable'?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I appreciate the spirit in which the questions are asked. Occasionally you'll find that, when questions go to some of the aspects of the previous government's record in relation to the independence of the Fair Work Commission, I find it hard to resist pointing out the track record of politicisation of that institution. However, to your question: the amendment would also insert a new subsection—I think it's 249(1AA)—that would provide that, if an application for a single-interest employer authorisation is made by a bargaining representative under paragraph 248(1)(b), in respect of an employer that has 50 or more employees, it is presumed 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 established.

So the matters that are specified in subparagraph 249(1)(b)(vi) concern whether relevant employers are reasonably comparable in terms of their operations and business activities. Such evidence is likely to concern the nature and size of the employers and their operations and their business activities. While some of this information may be available, at least in part, to employees, particularly in smaller enterprises, much of it will only be known to the employer, or to employees only as it pertains to their role; that is, it may only be apparent to them in a partial or fragmentary way. This is particularly acute in terms of the nature of the employer's enterprise, the employer's business activities and operations. In most cases such information will be most readily available to employers or their bargaining representatives.

These are considerations which must be balanced. Who should bear the burden of establishing that the relevant test is met or not met? Having regard to the burden that could be posed in enterprises of 20 to 49 employees, it is appropriate in such cases to require employees and their bargaining representatives to establish that the relevant test is made when making the application for the authorisation.

With respect to employers with 50 or more employees, due to their increased size and complexity of their operations, they are more likely to be in a position to provide the relevant evidence going to these matters. In such circumstances it would also be much more difficult for employees and their representatives to provide sufficient evidence to establish that the test is met. It is appropriate, therefore, in the government's view, that the amendments provide for a rebuttable presumption and an opportunity for employers—that is, employers with 50 or more employees—to establish that the relevant test is not met in relation to their business. And for the kids upstairs listening to this, there will be a test at the end of the session!

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

Has the government tabled the final explanatory memorandum in relation to this bill? I want to make sure we're working off the same documents.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes, the supplementary has been tabled.

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

I want to go through what you've just put to the chamber. In terms of the amendment that we're referring to, it does also state that if 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 operations and business activities of the employer are reasonably comparable with those of other employers that are covered by the agreement, unless the contrary is proved. I believe that's what you were reading out.

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes.

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

Does this mean that for employers with less than 50 employees, it will be for the employee representatives to prove that the employers have reasonably comparable operations?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

Yes, Again, it's a different onus.

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

The question I want to pursue, then, is: does this reverse onus for employers with less than 50 employees apply for other statutory tests? Does it apply for the common interest test? Does it apply to the public interest test?

Tim Ayres (NSW, Australian Labor Party, Assistant Minister for Trade) Share this | Link to this | Hansard source

I think that's right. The tests that we have just been traversing apply to that stream. We will be in a position, I think, perhaps later this afternoon, to come back to this question—

Marielle Smith (SA, Australian Labor Party) Share this | Link to this | Hansard source

Minister, as it is very close to 2 pm, the committee will report progress to the Senate.

Progress reported.