Tuesday, 12 November 2019
Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019; In Committee
The government will not be supporting this amendment. The Senate would be aware that the government has already moved amendments in the House of Representatives to ensure that under any forced divestiture the transfer-of-business provisions in the Fair Work Act would apply and provide all of the appropriate protections in the context of transfer-of-business provisions to employees. The proposed amendment would cause the transfer-of-business provisions in the Fair Work Act 2009 to apply more broadly in the case of divestiture scenarios than they would under any ordinary sale of assets. The proposed amendment would alter the way the transfer-of-business provisions in the Fair Work Act apply in the case of divestiture under the bill by expanding the types of arrangements covered by the transfer-of-business provisions. Where relevant circumstances are satisfied, the transfer-of-business provisions will ordinarily apply to a transferable instrument such as an enterprise agreement. The proposed amendment would expand the scope of arrangements to which the transfer-of-business provisions apply to a broader class of instruments, namely any workplace instrument. The proposed amendment would mean that there are additional rights conferred in the case of divestiture that are over and above those currently contained in the Fair Work Act 2009 for usual transfer-of-business situations.
Even more concerning from the government's point of view, it is unclear precisely what additional instruments the proposed amendments would pick up. It would be a blanket obligation under the legislation to act consistent with any non-registered agreement, and we don't believe that that is desirable. We believe that it is preferable, in sharing the same objective, to ensure that, in the context of a forced divestiture, employee entitlements are properly protected. We believe it is preferable to give the government of the day the discretion to deal with any such non-registered agreements on a case-by-case basis to assess the public interest in each circumstance. That is why the government flag that we will be moving government amendments to give the Treasurer the regulation-making power to deal with non-registered agreements in that way.