Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I want to focus on employers welcoming the changes to the BOOT and, in particular, the fact that, going forward under the original clause that was tabled, the better-off-overall test would not apply to the hypothetical or unlikely work. I will shortly take you through the Officeworks case study and the Prouds retail employees enterprise agreement because, as you know, they are not hypotheticals but actual cases that were decided. There appears now to be some inconsistency in what you have just advised the chamber of and the press release that was issued on 27 November 2022 by Adam Bandt on behalf of the Australian Greens. This has now caused, as you can understand, absolute confusion amongst employers and employees across Australia.

On one hand, we had the government allegedly working with employers following the jobs and skills summit. There was an agreement that there needed to be changes to the BOOT within reason. Those changes were reflected in the first draft of the legislation that the minister tabled and spoke to, as I stated, on 27 October. On 27 November 2022, after the deal was done with Senator David Pocock on the amendments now before the chair, a press release was issued by the Australian Greens. I want to read this into the Hansard record because I then want to explore with you what the differences are between this press release and the statement that you have just given to the Australian Senate. It read:

Greens Leader and Workplace Relations spokesperson, Adam Bandt MP and Greens Employment Spokesperson, Senator Barbara Pocock say the Greens have agreed to back the government's IR bill after securing significant additional improvements, including giving parents an enforceable right to request unpaid parental leave and protecting the existing Better Off Overall Test. The Greens have been locked in negotiations with the government on the bill for several months—

very interesting—

…the government has already included a number of long-standing Greens initiatives—

and I'll get you to take me through them shortly.

This is the paragraph of concern that has been brought to my attention, as I said, by multiple employers and employees:

The government's original bill—

the one that we've just been talking about—

attempted to remove prospective workers from being considered under the Better Off Overall Test when agreements are approved, something the Greens were concerned could have led to prospective workers being worse off. The Greens have ensured that the test in the existing s193 will remain. Further, the bill will be amended to clarify that when applying the BOOT—

this is the important bit—

and considering potential work patterns of current or future employees, the FWC will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable…

This is where the concern has been raised. We have a statement by the minister in relation to the original bill. We have the explanation that you've just given to the Australian Senate. We have the amendments in front of us, and we will go through them in detail, but at the same time we have a statement from the Australian Greens that basically says all bets are off in relation to considering potential work patterns of current or future employees, and the Fair Work Commission will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable. Seeing that was probably the biggest win that the employers have, I need to genuinely understand—again this is statutory interpretation. There is a press release here. It appears to not be consistent with what you've just said. Is the press release correct? It says:

…the bill will be amended to clarify that when applying the BOOT and considering potential work patterns of current or future employees, the FWC will still have to apply the existing tests and assess any work patterns the employer, union or employees consider foreseeable…