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

by leave—I move government amendments (12) and (13) on sheet QC300 together:

(12)  Clause 524, page 417 (line 23), omit “Note:”, substitute “Note 1:”.

(13)  Clause 524, page 417 (after line 25), at the end of subclause 524(2), add:

Note 2: An enterprise agreement or a contract of employment may also include terms that impose additional requirements that an employer must meet before standing down an employee (for example requirements relating to consultation or notice).

Item (12) is a minor technical amendment consequential on item (13). It allows a second legislative note to be included. Item (13) would insert another legislative note, following clause 524 of the bill. It explains that an enterprise agreement or contract of employment may make additional provisions for stand-down, including consultation or notice requirements.

Question agreed to.

by leave—I move government amendments (14) to (16) on sheet QC300 together:

(14)  Clause 734, page 543 (line 19), before “A”, insert “(1)”.

(15)  Clause 734, page 543 (line 22), omit “another”, substitute “an anti-discrimination”.

(16)  Clause 734, page 543 (after line 27), at the end of the clause, add:

        (2)    A person must not make an application or complaint under an anti-discrimination law in relation to conduct that does not involve the dismissal of the person if:

             (a)    a general protections court application has been made by, or on behalf of, the person in relation to the conduct; and

             (b)    the application has not:

                   (i)    been withdrawn by the person who made the application; or

                  (ii)    failed for want of jurisdiction.

These amendments deal with provisions preventing a person from double-dipping by bringing multiple actions under the general protections provisions and other laws. As introduced, clause 734 would prevent a person bringing an action under the general protections if they had already brought an action under another law in relation to the same conduct. Concerns were raised that this did not prevent a person from bringing a general protections claim first and then bringing an action under another Commonwealth, state or territory antidiscrimination law. Amendment (16) would therefore ensure that a person is only able to bring an action under either the general protections or a Commonwealth, state or territory antidiscrimination law but not both—a sensible amendment, if I may say so. This will not prevent a person from bringing applications under other relevant laws in appropriate circumstances—for instance, where the conduct may also breach a person’s obligation under workers compensation laws. Amendments (15) and (16) are consequential upon that.

Question agreed to.

I move government amendment (1) on sheet PV376:

(1)    Clause 596, page 470 (after line 6), at the end of subclause (2), add:

Note:   Circumstances in which FWA might grant permission for a person to be represented by a lawyer or paid agent include the following:

(a)        where a person is from a non-English speaking background or has difficulty reading or writing;

(b)        where a small business is a party to a matter and has no specialist human resources staff while the other party is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.

Forward with Fairness noted that Fair Work Australia will act informally and in most cases lawyers and other professional representation will not be necessary, requiring lawyers and contingency fee agents to seek permission to appear before the FWA and ensuring that, wherever it is more efficient to do so, cases can be dealt with without legal representation. Employees of organisations appearing before the FWA who are legally qualified are not excluded, as they are appearing in the capacity of employees of the organisation rather than as legal representatives. Consistent with the FWA having a broad discretion as to how matters before it are dealt with, the FWA may allow paid lawyers or agents to represent a person in a matter before it, subject to a number of criteria.

The FWA must balance a number of factors in deciding this question, including whether it would be unfair not to allow representation, the complexity of the matter and the fairness between the parties. If the FWA considers that a worker involved in proceedings is disadvantaged or vulnerable, it is clearly open to the FWA to grant permission for legal representation. The government notes that the Senate committee received evidence that workers may be disadvantaged if they are not properly represented.

The government is moving this amendment following discussions with Senator Xenophon where examples were provided of when it would be appropriate for the FWA to allow legal representation. Examples of where the FWA may consider granting permission for a person to be represented by a lawyer or a paid agent are: where a person is from a non-English-speaking background or has difficulty reading or writing and where a small business with limited specialist human resources experience is unable to adequately represent itself against a party that is represented by an officer or employee of an industrial association or another person with experience in workplace relations advocacy.