Barbara Pocock (SA, Australian Greens) Share this | Hansard source

by leave, I move Greens amendments (1) and (2) on sheet 3382 together:

(1) Schedule 1, heading, page 3 (line 1), omit "Amendments", substitute "Penalty and overtime rates".

(2) Page 4 (after line 6), at the end of the Bill, add:

Schedule 2 — Mandatory terms of workplace determinations must be not less favourable

Fair Work Act 2009

1 Paragraph 235(4)(b)

Repeal the paragraph, substitute:

(b) ceases to be in operation at the earlier of the following:

(i) when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination;

(ii) if the declaration is revoked under section 235B—at the time the declaration is revoked.

2 At the end of Subdivision B of Division 8 of Part 2-4

Add:

235B Revocation of intractable bargaining declarations

Revocation on application

(1) The FWC must revoke an intractable bargaining declaration in relation to a proposed enterprise agreement as soon as practicable after an application for its revocation is made under subsection (3).

Revocation rather than inclusion of less favourable terms

(2) If:

(a) section 270A applies; but

(b) the FWC considers that it is not empowered in respect of a particular matter to include in a determination a term that is not less favourable to each of the employees referred to in section 270A, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement referred to in section 270A that deals with the same matter,

then the FWC must revoke the intractable bargaining declaration in relation to the proposed enterprise agreement.

Applications for revocation

(3) The bargaining representative for a proposed enterprise agreement who applied under subsection 234(1) for an intractable bargaining declaration in relation to the agreement may apply for the revocation of the declaration.

What revocation must specify

(4) A revocation must specify when it is made and the intractable bargaining declaration to which it relates.

Further applications for declarations may be made

(5) To avoid doubt, a revocation of an intractable bargaining declaration in relation to a proposed enterprise agreement does not prevent an application under subsection 234(1) for a further intractable bargaining declaration in relation to the agreement.

3 Section 270A (heading)

Repeal the heading, substitute:

270A Certain terms must not be less favourable

4 After subsection 270A(2)

Insert:

(2A) A term that is included in the determination to comply with subsection 273(2), (4), (5) or (6), must be not less favourable to each of those employees, and any employee organisation that was a bargaining representative of any of those employees, than a term of the enterprise agreement that deals with the same matter as the term included in the determination.

Note: In addition, the delegates' rights term included in compliance with subsection 273(6) must not be less favourable than the delegates' rights term in any modern award that covers a workplace delegate to whom the determination applies (see subsection 273(7)).

5 Subsection 273(4)

After "must include the model flexibility term", insert ", or, if section 270A applies, a term that complies with section 270A,".

6 Subsection 273(5)

After "must include the model consultation term", insert ", or, if section 270A applies, a term that complies with section 270A,".

7 At the end of section 274

Add:

Nature of agreement required

(4) A term may be an agreed term for an industrial action related workplace determination, or an intractable bargaining workplace determination, even if the agreement in relation to the term, of one or more bargaining representatives for the proposed enterprise agreement concerned, is conditional, qualified or in-principle in nature.

8 In the appropriate position in Schedule 1

Insert:

Part 20 — Amendments made by Schedule 2 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025

128 Application of amendments

(1) The amendments of sections 270A, 273 and 274 made by Schedule 2 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 apply in relation to a workplace determination made on or after the commencement of that Schedule whether:

(a) for an intractable bargaining workplace determination—the intractable bargaining declaration to which the determination relates was made before, on or after that commencement; or

(b) for an industrial action related workplace determination—any conditions necessary for the making of the determination were satisfied before, on or after that commencement.

(2) Sections 235B as added by Schedule 2 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 applies on and after the commencement of that Schedule in relation to an intractable bargaining declaration (whether the declaration was made before, on or after that commencement).

The Greens know that there are employers who will always look for every loophole in a law to cut wages or to take away conditions, and the law needs to make sure that workers don't go backwards. That's why the Greens were pleased to work with the government last year to secure changes that stopped the new protracted bargaining workplace determination provisions being used to take away long-held enterprise agreement conditions. That was a loophole in the law, and we managed to clarify the intention of the bill. The longstanding rule that your old agreement stays in place until you've negotiated a new one would continue. That protracted bargaining determination, and strategies like it, were not a back door to take away long-held conditions. We worked hard to make sure that was the case.

Unfortunately, despite that very clear change to the law last year, some employers are still saying there's a loophole. This isn't some obscure theoretical point; it's having real-world impacts right now. In Victoria, for example, an employer is using the law to try to take away firefighters' rights to agree on what uniforms they wear into a fire. This is not a trivial question. This is a life-and-death matter, a serious health and wellbeing issue for those firefighters. This issue has also big implications for many state public sector workers who may get pushed into federal arbitration, and others, like staff in universities, for whom hard-won clauses around consultation are critically important.

To deal with these issues and points like this, the Greens amendment clarifies that, where there is an agreement in place, where parties are negotiating for a new one and one party has applied for an intractable bargaining workplace determination, the determination can't take workers backwards. Each term of the determination must be no less favourable than the corresponding term of the agreement. It restores the position that your current agreement stays in place until you negotiate a new one. The government should be able to support this for the same reasons they fixed the law last year. This is not about giving workers and their unions new terms and conditions; it's about ensuring they can't go backwards. It's urgently needed, and it's in line with the intention of this bill. I urge Labor to protect the conditions of thousands of Australian workers—those public servants, those firefighters—and support this amendment.