Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

In this instance I used the Corporations Law because it would prevail over an award. Therefore, if there were a duty to abide by the corporations act, the corporation will do that in respect of the matter. If I am wrong about that then, obviously, we will get an opportunity to have a look at this overnight. That would be my understanding of how it would work. It is a source and stream argument. An award is not equal to, in that sense, a corporations act. You would expect the corporations act to be the relevant piece of legislation that the Corporations Law would have to apply to.

It looks like I do not have Senator Fielding on my side. On that basis we will have a division and I think the government will probably lose this amendment, but we will have overnight to consider how we do what I would call a belt-and-braces effect, to see if we can save the important part of consultation. I am sure these were probably arguments that were run back in 1984, which is a bit Orwellian, I have to say. The position would have been made clear. It read then and still reads today that, when an employer has made a definite decision to introduce major changes to production, programs, organisation structure or technology that are likely to have a significant effect on employees, the employer shall notify the employees who may be affected by the proposed change in their union or unions. It goes on to explain what ‘significant effects’ are. It contemplates notification in this instance about a TCR provision. It is expressed in similar terms, although we have used the term ‘employee’s representatives’.

We note the provisions are also mandatory in certified agreements, but they have not been picked up. We have said that they are, in effect, mandatory. We have said in respect of our position that a modern award must include the term ‘requires’. It is the same in the sense that TCR provisions are also mandatory, and so is this. It is about the heart of the issue, which is consultation. It is about ensuring employers consult with employees in these circumstances. I think it boils down to nothing more nor less than that.

You can argue about what might be of concern to some employers, but my experience tells me, after many, many years, that employers will always throw up some red herring, some reason why they cannot consult, because ultimately they do not want to consult about major change which may impact or significantly affect their employees. It would have been argued back in 1984. It was removed from the Workplace Relations Act by the Liberals and now we are simply seeking to ensure that we go back to a circumstance where employees do get to be consulted about these provisions. As I have said—and I will not keep the debate going any longer—we will test it and then we might have a look at it overnight.