Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I know, unfortunately, that I will not convince you; what I am trying to do is attract the attention of Senator Xenophon ear because my advocacy on this matter may well decide whether or not we divide. With great respect to Senator Xenophon, I refer him to section 426, subclause (3). This deals with the requirement concerning significant harm to a third party—the words ‘significant harm’ are included in the section’s heading. It states:

FWA must be satisfied that the protected industrial action is threatening to cause significant harm to any person …

It is already saying ‘significant harm’; then, in subclause (4) it states:

… FWA may take into account any matters it considers relevant—

and then goes through four or so different scenarios. What the minister is now saying is that not only do we need to prove significant harm but we now have to prove significant harm that will reduce significantly a person’s capacity to fulfil a contractual obligation. So it really is a double whammy.

In relation to the disruption of the supply of goods, it will have to cause significant harm and disrupt for an extended period. So you could potentially have significant harm that does not go on for an extended period. What you are doing is tying up Fair Work Australia and basically gutting it of any real and genuine discretion so that, for example, if the newspaper printers went on strike and I did not get my morning newspaper it would not allow me to run along to Fair Work Australia and say, ‘I am suffering harm.’ Although chances are it is better for me not to have read the newspaper in recent times! Fair Work Australia, in assessing it, would immediately say, ‘Does it cause significant harm?’ I would have thought the answer to that would clearly be no.

So there is the overriding, overarching test, which is that Fair Work Australia needs to find significant harm. You have to have significant harm and on top of that the disruption has to be for an extended period—that it has to reduce significantly the person’s capacity to fulfil a contractual obligation or cause other serious economic loss to the person. So you have got significant harm and serious economic loss. I would have thought that significant harm is the balancing part of this section of the bill and all these additions have been thrown in as a sop to some people. And with great respect to Senator Marshall, who chaired the Senate committee to which Senator Ludwig referred—and I think Senator Marshall did the job very well—the committee’s report contains only the Labor senators’ view on this. That ought to be kept in mind. I am concerned about how these extra qualifications will apply with, say, a stevedoring strike because, for example, one day of disruption would not be regarded as an extended period of time, but if you have perishable goods it could be very damaging. That is why allowing Fair Work Australia to determine whether it would cause significant harm is the test, and then those four categorisations are important.

It is also interesting to note that the Labor senators’ recommendation did not have the suggestion of all the amendments that are in here, only (4)(a) and the suggestion that it should only be economic harm, whereas these amendments, thank goodness, do not take up that suggestion. I say to the crossbenches that we believe this is a very important aspect which unduly gives power to unions at the expense of small business and jobs.