Amanda Rishworth (Kingston, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill, and I move the government amendment as circulated:

(1) Schedule 1, item 1, page 3 (after line 18), at the end of section 135A, add:

  (3) Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.

The amendment introduces new subsection (3) to proposed section 135A, putting it beyond doubt that the changes introduced by this bill do not require or compel the Fair Work Commission to undertake a review of all modern awards to see whether the new principle applies or not; review award terms outside the scope of an application before the commission; or exercise its powers to make, vary or revoke a modern award. It was never the intent of the bill to compel the commission to undertake a review of all modern awards or to review penalty and overtime rates if those terms are outside the scope of the particular application before the commission.

We are and have been incredibly confident that the bill as introduced, without this amendment, would not have operated in this way. However, the government is committed to ongoing genuine consultation, which I have afforded to the opposition but also, of course, to business, employer representatives and unions. We are amending the bill for the avoidance of any doubt and to provide certainty for stakeholders, in good faith. I commend the amendment.

Question agreed to.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

I ask leave of the House to move opposition amendments (1) and (2) together, as circulated in my name.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I call the Leader of the House.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

No such amendments have been circulated or exist, so we should continue.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I'll just clarify with the clerks. The normal way is that the amendments are presented. I understand the instruction was given to only circulate them after the speech. That's the way consideration in detail works, to keep the smooth running of the House. The Leader of the House.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

There is nothing for us to give leave to because there is nothing that the House is in possession of. People have the choice as to whether they circulate or not. If you don't circulate, you've got to read the whole thing out, which he should now do.

Milton Dick (Speaker) Share this | Link to this | Hansard source

We're going to do this efficiently. The member for Goldstein can read the amendment out, then.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

Sure. Amendment (1) reads:

Schedule 1, item 1, page 3 (line 6) to page 3 (line 18), omit section 135A, substitute:

135A Special provisions relating to penalty rates and overtime rates

(1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must be satisfied that:

(a) the rate of a penalty rate or an overtime rate that employees are entitled to receive under the modern award is not reduced; and

(b) modern awards do not include terms that substitute employees' entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that an affected employee would otherwise receive under the modern award.

(2) Subsection (1) does not apply when the—

Milton Dick (Speaker) Share this | Link to this | Hansard source

Just a moment, Member for Goldstein, I'll get you to take a seat. The Leader of the House.

Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

I think what the member for Goldstein is trying to do is move the amendments, which means he has to say at the start that he is moving them and then go through the provisions he is moving, otherwise there will be nothing before the House.

Milton Dick (Speaker) Share this | Link to this | Hansard source

Member for Goldstein, you've made the decision to read the amendments out, but, just before you start, to assist the House, could you say formally, 'I move the amendments,' and then begin.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

by leave—I move opposition amendments (1) and (2) together:

(1) Schedule 1, item 1, page 3 (line 6) to page 3 (line 18), omit section 135A, substitute:

135A Special provisions relating to penalty rates and overtime rates

(1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must be satisfied that:

(a) the rate of a penalty rate or an overtime rate that employees are entitled to receive under the modern award is not reduced; and

(b) modern awards do not include terms that substitute employees' entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that an affected employee would otherwise receive under the modern award.

(2) Subsection (1) does not apply when the FWC exercises powers under this Part pursuant to:

(a) section 144 (flexibility terms); or

(b) section 160 (which deals with variation to remove ambiguities or correct errors); or

(c) paragraph 157 (3)(a) (own initiative).

(3) Paragraph (1)(b) does not apply when the FWC exercises powers under this Part in relation to terms of a modern award that substitute employees' entitlements to receive penalty rates or overtime rates where those terms existed immediately prior to commencement of Subsection (1).

(4) Paragraph (1)(b) does not apply when the FWC exercises powers under this Part in relation to terms of a modern award that substitute employees' entitlements to receive penalty rates or overtime rates where those terms are expressed to apply only to a small business employer.

(5) Subsection (1) does not limit the FWC's ability to make a determination to vary a modern award where the determination is made:

(a) to ensure that awards are operating effectively by addressing any anomaly or technical irregularity in the award arising from either the making of the award or past variations to it; or

(b) as an outcome of proceedings commenced by the Commission of its own motion if Commission is satisfied is necessary to achieve the modern awards objective and compliance with section 138, or

(c) following the Fair Work Commission being satisfied that the variation is fair to employees and that it would:

(i) improve productivity; or

(ii) promote employment opportunities or the participation of employees in paid work; or

(iii) assist employees to balance their work and family commitments.

(2) Schedule 1, page 4 (after line 3), at the end of the Schedule, add:

3 Regulatory impact statement

(1) The Minister must cause a regulatory impact statement to be prepared in relation to the operation of the amendments made by this Act.

(2) The persons preparing the regulatory impact statement must complete it within one year after this Act commences.

(3) The persons preparing the regulatory impact statement must give the Minister a copy of the statement.

(4) The Minister must cause a copy of the regulatory impact statement to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives a copy of the statement.

We just had a long dissertation on the amendments put forward, even though I understand they have been provided to the Clerk. But the Leader of the House, in his brilliance and capacity to be able to manage the challenges of this parliament, particularly its committee process, is, of course, being a pedant. So be it. There is a simple reality: we support penalty rates. We understand how important it is to support jobs and small businesses, and there are no penalty rates on jobs that don't exist. We have gone directly to the Australian people because the minister has shut down any pathway of understanding the impact of the legislation she is putting before the House. She is not interested in hearing from nor speaking to nor seeing any small business, so we did the minister's job for her.

Let's look at some of the feedback we have from the Australian community on why these changes are so important, to make sure that these voices are heard: 'I run a small business, and I'd like to know what this new legislation is, because I don't know what it entails'; 'Small business requires owners to work in the businesses, be bookkeepers, know all the taxes, know all the fair work laws, know all retail and wage laws and make sure everything is on paper. Penalties are great if not done'; 'Big businesses have accountants and PR and HR professionals—things small businesses can't afford'; 'At present we have good businesses closing down which can't sell'; 'No-one wants the stress, pressure and long hours for what now has little reward. It's easy to have a government job with shorter hours, large penalty rates, holidays, sick leave et cetera.' This is the problem. Without any proper consultation, the government has not understood the consequences of its legislation and the impact it's going to have on small businesses. The minister's understanding of small business, and this government's understanding of small business, is that corner shops have HR departments, legal departments and special advisers.

By the way, that's where all the money for penalty rates for young Australians and people who want to get ahead and get paid well gets sucked into: non-economically-productive activity to manage the realities of laws in this country. When we talk about simplification, we're talking about getting rid of needless legal work, needless accounting work and needless industrial relations advice so you can actually pay Australians more. It's simpler, cleaner and easier so Australians can get ahead, support their families, be in a position to have flexibility in their workplace arrangements and do things like pick up kids from school or manage work-life balance. It seems an entirely logical thing to do, except, of course, if you're part of the Albanese government. If you know this is the reality, and you know this is the consequence of legislation put forward to this House, the questions for the minister, the Prime Minister and, of course, everybody on Labor benches are: Why do they not want to hear from small business, see small business or talk to small business? Why don't they want to have a conversation where they can give the voices of small business a say in this nation's parliament?

We have had sloppy drafting at every stage of this legislation. This is not just my view; it's, of course, the view of industry, who have explicitly said that these are badly drafted laws. To the credit of the minister, she moved an amendment to address some of the sloppy drafting in her legislation, just now, and we supported her. We supported her because we actually want to make sure we get the legislation we need so that we get the outcome that we want for the Australian people. I will take a point of slight hilarity, which is that she's now accusing me of being disingenuous in my approach—through the Speaker, of course. The minister simply doesn't understand. Some of us believe in empowering Australians. Some of us—

Milton Dick (Speaker) Share this | Link to this | Hansard source

We're dealing with technical amendments. This is not a general debate. This applies to everyone who moves consideration in detail. I've allowed some latitude here. To assist the House, member for Goldstein, make your remarks about the regulatory impact statement and the reasons behind that, perhaps.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

One of the reasons we want a regulatory impact statement is that we need to understand the direct consequence of this legislation on those people it's designed to impact. We have a current situation where the minister doesn't want to engage with small business or do a regulatory impact statement. And, even worse, when she's asked how many small businesses in this country are going to be affected, she cannot answer the simple question. It's a simple expectation. You've got legislation. You're trying to effect change. You're claiming it's positive, so tell me how many small businesses in this nation these laws will have an effect on.

Amanda Rishworth (Kingston, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

The flourishing rhetoric from the member for Goldstein is very reminiscent of Work Choices. I know that, deep down, that IPA Work Choices passion still burns in the shadow minister for small business, industrial relations and employment. I will directly reject the proposition. We will not be supporting this amendment for a number of reasons.

The first reason is that the shadow minister has pretended he supports penalty rates, but, in the provision that he has tabled, the words 'where the Fair Work Commission must be satisfied' are actually a watering down of protections. It is a lower test to protect penalty rates. Our words that include 'must ensure' are the words that provide the greatest protection. So while he's trying to have a bet both ways here, his substitution and his amendment would water down the test for workers in this country and go to a lower test to protect penalty rates. That is one of the reasons we are rejecting this amendment.

The second reason is—he's a bit rusty on this, and, in his own way, he acknowledged that he'd already accepted our amendment that made sure that there wasn't a requirement to go through any old modern awards—his (1)(b) position is actually completely redundant. It is an unnecessary duplication, and, for someone who has talked about regulatory burden, having a duplication in this bill really doesn't sound very productive to me. It adds complexity to the Fair Work Act, so we are rejecting that part.

He's focused a lot on a regulatory impact statement. He's talked about the 'big change' that this amendment is going to put through all workplaces in Australia, but the impact of this is that there is no change to what is currently operating. So he is asking for a regulatory impact statement—talk about a lot of duplication and red tape!—for something that involves no change whatsoever. He's asked about the direct consequences for small business. That has been his biggest concern. He must have missed my summing-up speech, because, to be clear, this bill does not alter existing employer obligations, including those of small business. It requires employers to do exactly what they are doing now. I am not sure if the shadow minister, through this amendment, is trying to foreshadow that if the coalition is ever elected, he intends to rip away penalty rates and overtime rates, because it doesn't alter any obligations.

There has been flourishing rhetoric about all the small businesses. I'm talking directly to small business all of the time, and my message to small business is that the result of this amendment we are making to protect penalty rates is for you to do exactly what you're doing now. Comply with the law; pay penalty rates, if you pay under the award system and you’re required to do so; and, if you would like to enter into negotiations with your employers, there is an enterprise bargaining framework that is there for you to use. This is a sensible, simple proposition. The shadow minister has got himself all tied up in knots. He's a little bit rusty with the parliamentary procedures. I'm sure that he'll calm.

Finally, I'd just like to mention—talking in good faith—that I have been very open with the shadow minister. I have not only consulted with employers, unions and, of course, workers around this country; I briefed him as well. I would hope that we could continue to work in a collaborative way, even when we disagree. He has clearly put it on the table that that is not the way he wants to work, which I'm fine with. We will get on with the job of protecting Australian workers, making sure Australian workers don't go backwards, and we will reject these amendments entirely.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question before the House is that the amendments moved by the honourable member for Goldstein be agreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question now is that this bill, as amended, be agreed to. The member for Goldstein on a point of order?

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

My understanding is that we have discussed the amendment. I now have questions about the legislation as part of consideration in detail. I'm allowed to ask questions, am I not?

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question that we just dealt with was on your amendments. That matter has been resolved. We are now moving to the question that the bill, as amended, be agreed to. That's what I'm trying to put. Once I do that, it's all yours. The question now is that this bill, as amended, be agreed to.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

I have a question directly for the minister in relation to this legislation. As we have outlined already, the minister has not engaged with small business on the impact of this legislation—and she has literally just voted to shut down pathways and the regulatory impact statement—so we have done her job for her. We've had a number of people contact us who have questions they want to ask of the minister, and I will read out some of the questions that we are now going to put to her and that we'd like answers to.

Firstly, small businesses require owners to work in the business, to be bookkeepers, to know all tax laws, to know all work-care laws, to know all retail and wage laws and to make sure everything is on paper. The penalties are great if this work is not done. Big businesses have accountants and HR personnel—things small business can't afford. At present, we have good businesses closing down which can't sell. No-one wants the stress, pressure and long hours for what is now little reward. It's easier to have a government job with shorter hours, large penalty rates, holidays, sick leave et cetera. The question from that point, Minister, is: how large would an HR department need to expand to under this legislation for a small business?

Secondly, industrial relations can be a great thing to protect workers rights when done in moderation; however, when there are too many hurdles or cost hikes for small businesses, they often go broke and then—guess what?—they have to lay off staff. Can the minister advise the House what assessment has been completed on the number of people who will be laid off as a consequence of this legislation?

Thirdly, as a separate issue, I am a parent of a teenager who has actively looked for employment. As an employer and when I speak to other employers there's a real disincentive to employ younger workers. It's certainly something my daughter is experiencing. The question for the minister is: how many younger workers will be put off as a consequence of this legislation?

Fourthly, the security industry, for many years, has operated on 12-hour shifts. This allows for maximum time off and family friendly rosters—a very important thing, I might add. Currently our security patrol officer works seven 12-hour shifts each fortnight. We pay the night shift allowances and Saturday, Sunday and public holiday rates on these days when they are worked. We not pay overtime on the 12-hour shifts as the advantage to the employee is a trade-off benefit. Currently, a security officer on the standard roster earns about $87,000 a year, working for less than six months of the year. Should the upcoming legislation interfere with the roster system, we would be forced to revert to six-hour shifts each night.

The question for the minister is: have you looked at the impact on the security sector, particularly at the impact it might have on rosters?

Fifthly, people forget that the price of their goods at the supermarkets are inflated to compensate for this variation in wages over the weekend, and, for supermarkets, I think penalty rates come in at about 6 pm. I think the argument from the unions would be that they are unsociable hours. We work out what goods would cost if they added on penalty rates, and that's what small business then has to pay. Of course it has a direct impact on things like the price of coffee et cetera.

Sally McManus was on television this morning complaining about bosses burning their staff out. It's not bosses that are burning people out; it's the current Labor governments, especially the one in Victoria, putting more and more costs into small business, so small-business owners have got no choice but to cut, and the easiest place to cut is, of course, labour. There are a lot of people working longer hours and harder to make up the difference. Has the minister looked into these issues?

Lastly, if not a death sentence for some, this could also mean the difference between employment and unemployment for currently unemployed workers. It's fairly clear that Labor cares more about satisfying the unions by strengthening their monopoly on IR, rather than supporting small business. Of course, this is no surprise as they are all trade unionists. Is this legislation simply designed to feed the trade union movement and pay off their pay masters?

Amanda Rishworth (Kingston, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I thank the shadow minister for his circular questions. Ultimately, the proposition he's putting forward is that penalty rates shouldn't be in awards. Effectively, his questions about the impost that penalty rates are on HR departments, as well as his proposition about how bad penalty rates are and how difficult they make things, go to the substance of this bill.

The basic question in the amended bill before the House is: do you support protecting penalty rates and overtime rates in the award safety net or not? That is a simple proposition, and all the scenarios he's put to me in the questions suggest that, deep down in his heart, he would love nothing more than to strip penalty and overtime rates from all awards and every workplace in this country. That is a shameful proposition. If that is what is in his heart of hearts, he should have the guts to get up to the dispatch box and say he's opposing this bill. Is he going to oppose this bill? Does he oppose this bill? He said that he agrees with penalty rates, but, in the proposition of every single one of his questions, he has argued against penalty rates and against overtime, saying that they make it complex.

Is it his proposition that no small business in this country should ever have to pay penalty rates? That is what he's putting to the House. I will answer that question. I disagree with that proposition. I think hardworking Australians deserve penalty rates, particularly those who rely on the safety net and the modern award. So I'm going to repeat this for the shadow minister, because he's a little slow at catching up. This provision does not require any extra impost on small business. There is no extra impost whatsoever. What this provision does is protect what is currently happening. So I will repeat it again for him. If you're a small business and you pay under the award and you're paying penalty rates, then you just keep doing it.

If his proposition is that that is terrible for small business, then he is putting to the House that he disagrees with paying penalty rates. He doesn't support penalty rates. There's no other conclusion that you can make. The shadow minister has got to have the courage to either get up, vote against this bill and say he disagrees with penalty rates or actually back what the Australian people agreed to at the election, and that is the protection of their penalty rates.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

Point of order on relevance: I did ask a series of specific questions, which is specifically—

Milton Dick (Speaker) Share this | Link to this | Hansard source

The relevance provisions are not for now.

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

The point of order is that the minister actually isn't answering the very specific questions I asked.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I thank the member. The minister is in continuation.

Amanda Rishworth (Kingston, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

One of the questions he effectively asked was, 'Is paying penalty rates terrible for small business?' and I am answering that question. I am answering that question very, very clearly. We believe that people should get penalty rates that rely on the award. We are taking steps to protect those penalty rates. This isn't a proposition that hasn't been widely consulted. Of course, I have widely consulted, including COSBOA and a range of different small business and larger employer organisations.

Ultimately, though, the shadow minister is having difficulty understanding the results of the election. We put this proposition clearly to the Australian people, and they endorsed this proposition. Australians that are our lowest-paid workers should not go backwards. They shouldn't have less take-home pay in their pockets. This is what this provision is protecting here, and the shadow minister and the Liberal Party and the National Party need to front up and actually make a decision: do they support people's take-home pay going backwards, or do they want to preserve it? (Time expired)

Tim Wilson (Goldstein, Liberal Party, Shadow Minister for Small Business) Share this | Link to this | Hansard source

We just heard from the minister another one of the oratory flourishes from her in the context of her legislation. We asked a series of questions that were not my questions; they're actually questions of ordinary Australians. They're questions that were being put forward by ordinary Australians into this parliament because the minister refuses to do a regulatory impact statement, refuses to have a committee and literally explicitly voted against the pathway to have an inquiry into her own legislation after there were deep deficiencies and sloppy drafting and it was criticised by industry as being badly drafted, to the point now where she has amended her own legislation to address the limitations of the legislation. I see you chuckling there, Minister, but the reality is that we face a situation where small businesses across the country feel like they have no voice and they have been abandoned by this government and the minister as well as the minister for small business.

We raised a series of questions. The security industry is saying, 'What is going to be the impact on us?' and I asked a simple question about whether the minister had looked into that—no answer. We asked a simple question about how many teenagers would be at risk of losing their jobs after a mother contacted us and talked about specifically how there was a risk that there would be a disincentive to their teenage daughter getting a job. We asked how many teenagers would lose their job—no answer. The question that was asked in the context of people saying that this might be the basis on which small businesses' backs are broken and how many small businesses would lose their pathway going forward—no answer.

The minister was very open in talking about this legislation with me, and I've been very open and honest with people in saying: 'Yes, we had a briefing. It was a constructive briefing.' And we had a constructive briefing. There were a simple series of questions, and both her and all of her staff were there. What were the simple questions? The minister can attest to this. I asked, 'Has the regulatory impact statement been completed?' No. She has confirmed this publicly, so I don't see why it's such a big problem. The second part was, 'How many people are going to be impacted by this legislation?' Nobody had an answer to that, and they had done no study on how many small businesses would be impacted. It's her decision to make that answer up. I would have just said, 'Well, we've actually done the work and actually figured out how many people are going to be impacted by it.'

Then it was, 'What's the engagement around, particularly, small business?' She's listed out large industry associations and, of course, the trade union movement. The trade union movement has always been consulted, and I bet you they're on speed dial and probably SMSing the minister now. The minister has gone and consulted them but not small business. At every point, all we are doing is trying to provide a pathway for consultation to small business to understand what the impact of the legislation will be and how many will be impacted in an environment where we have record insolvencies so we understand the impact of this legislation.

Then the minister comes in here and says we refuse to reveal our position on penalty rates. Well, I don't know how to make it any clearer. The coalition supports penalty rates. For repetition. I will say it, through the Speaker, to the minister directly: the coalition supports penalty rates.

Now that we've resolved that issue, the question that we have to deal with is: how many small businesses are going to be impacted? The minister seems to want to ask me questions about that. While I am very flattered by that question, Minister, the reality is you have the department and the capacity to do it. At the end of the day, it is your legislation, not mine. You are running a scare campaign to justify it. Then you are turning around and saying it has no impact at all. I don't really understand what the point of that is. We are left in this quandary where one minute it's a necessary provision to protect penalty rates, which are deeply under threat; the next minute it's having no impact at all. And we are all very confused. I get it's confusing for the parliament, and I get it's confusing for the minister because we are all confused. The question now for us is how many of the small businesses that operate across this country will be impacted by this legislation? This has been the question at every point; I asked it at the first briefing I had with the minister, and she still cannot answer it. Small businesses employ millions of Australians. They are the backbone of the Australian economy, the basis on which the next generation of Australians get their aspiration, hope and opportunity for the future.

Bill, as amended, agreed to.