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

CASH (—) (): I think we've just done a full circle. The amendment, as you have rightly stated, sets out, 'If the common interest test is satisfied'—so we agree that the common interest test has been satisfied. We don't know what that common interest test is; we've got some basic guidance. But let's say, you are right, the Fair Work Commission has made a determination that the common interest test is satisfied. You are now inserting the additional amendment that says:

… if the requirements of subsection (3) are met—

Tick, they've been met—

the operations and business activities of the employer are reasonably comparable …

I agree. I have no issues with you there. But we seem to be a hamster on a wheel again, because the issue that we have is: what is the meaning of 'reasonably comparable'? I will give you another situation. Where specialist contractors are employed under a maintenance contract, these contractors have the same trades as employees in the host company but are specialised to fulfil specific roles—that is, for example, not labour hire. Could those specialist contractors be deemed reasonably comparable to employees in the host company under the legislation? The issue I have with the answer you gave—I agree; it's all set out in the act, but what I'm asking for is where is the additional guidance in relation to 'reasonably comparable'? Another example is two mining companies that compete at this level; they're all paying way above but we understand there is no carve out; the rostering system is different, but it's agreed and it suits those sites. Is that enough to actually have them as reasonably comparable, or does the difference mean they're not reasonably comparable? Ultimately, the words are there, but there doesn't appear to be any guidance given in relation to the words.