Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

We are dealing with amendments (1) to (3) on sheet 5744, moved by Senator Siewert.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I notice that the key players in the committee stage are just taking their positions and getting their documents together, which gives me a couple of moments to address the bill while that happens. As soon as we are in a position to go directly to the question before the chair, I will end my remarks. I did want to take this opportunity to talk about the process that got us here today. The bill before us was the subject of wide consultation while we as a party were in opposition and it was something we sought a mandate for in some very specific terms and in some very general terms as well.

In government, we then undertook a very comprehensive process, consulting all of the parties that have an interest in industrial relations in this country, including academics, employers and unions. We went through a very exhaustive COIL process and consultation process with those stakeholders. A draft bill was in front of people and they had an opportunity to look at how that worked. We made significant changes to the bill in the process to try to accommodate any of the major concerns that the stakeholders may have had. We then, of course, presented the bill to the parliament. Naturally, with a bill of this size and substance, the Senate Standing Committee on Education, Employment and Workplace Relations conducted an inquiry. I want to commend the senators that participated in that inquiry—

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

Thank you!

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

including Senator Abetz! It was a long and exhaustive inquiry. At some stages during the inquiry we had up to 15 senators at the table. It is a bill that generated much interest. We went to most of the major capital cities, as well as spending a full day with the Department of Education, Employment and Workplace Relations. I note that the Minister representing the Minister for Employment and Workplace Relations is here; if he indicates that he is just about ready, I will wind up. We published a comprehensive report with several recommendations, all of which have been seriously considered by the government and many of which have been picked up in government amendments. I will just finish by briefly thanking the secretariat for the work they did in preparing the report and the senators for their participation. I thank all those involved, and I commend the process, which was one of extensive consultation and review of the bill that is before us today.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I understand it, before the break we were at the point where Senator Fielding was about to contribute in respect of this particular provision. That is my recollection, and I will wait for an indication around the chamber about that. Dealing with the substantive matters, I think that, having focused on this issue for some time, the government supports the Greens proposal to extend the right to request to the parents of disabled children. That is amendment (4); I think Senator Abetz dealt with that some time earlier, but we are not dealing with that at this juncture. But the government is not prepared—and I wanted to soften the blow—to extend the existing legislation as broadly as is otherwise proposed in amendments (1) to (3) and, if it is of some help to Senator Siewert in her deliberations this afternoon, (5).

The government considers that the right-to-request provisions balance the reasonable need of businesses with recognition that working families can find it particularly difficult to balance work and family responsibilities. Of course, it is always open for employers and employees to discuss flexible workplace arrangements and reach sensible agreements that meet the needs of both parties. Nothing in the legislation prevents this occurring. It is also worth observing that existing discrimination law may provide a remedy for employees with these additional caring responsibilities if the reason for the refusal of their request amounts to unlawful discrimination. There are a range of existing laws around antidiscrimination that would also kick in. The NES entitlement to paid and unpaid carers leave also provides a source of support for employees to care for a member of their immediate family or household who requires the employee’s care and support. Perhaps I could cease at that point. I think I have provided at least a reasonable explanation of what the government’s stance is. Let us see how the debate unfolds from here.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Are we dealing with Greens amendments (1), (2) and (3) on sheet 5744?

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

That is correct.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

These are in relation to requests for flexible working arrangements. This is always a tricky area. I suppose it comes home a bit for me. I have a sister who is intellectually disabled. Obviously the strains and stresses on any family with a disabled child are quite extreme; most families in that situation do it tough. I have more than strong sympathy for them and I believe that we can go further than what is in Labor’s current bill.

I was hoping that Labor would agree with some of the amendments, in particular amendment (1) and amendment (3). Amendment (2) is very onerous in my eyes. It is a bit more than Family First would like to see. But (1) and (3) are very important additions. They help bring home some of the issues. I am hoping that even the coalition might think about amendments (1) and (3) separately to amendment (2). Amendment (2) would still keep the other clause, so (1) and (3) could still work with the existing clause about how the employer must give the employee a written response to the request within 21 days stating whether the employer grants or refuses the request.

We think the Greens amendment (1) strengthens clause 65(1) in the bill. At the moment, it just reads, ‘An employee who is a parent or has a responsibility for the care of a child under school age may request the employer for a change in working arrangements to assist the employee to care for the child.’ The Greens go a bit further and strengthen that clause. I believe that amendment (1) is a sensible amendment. Amendment (3) alters clause 65 to allow Fair Work Australia to review refusals of requests. The chamber should have a rethink on whether they could live with (1) and (3), but not (2). Perhaps we should put the question separately. I will take the lead of the two major parties on that.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I understand that Senator Xenophon might be warmed to this phrase, but the difficulty we face in this is that we do not support the proposed amendment empowering FWA to review an employee’s refusal of a request and impose penalties. The challenge there is that this goes against a longstanding position. The amendments would involve FWA, which is not a court, granting remedies for breaches of the NES. This would involve the excise of judicial power by a non-judicial body and would therefore be unconstitutional. Although a legal phrase, it is pretty much accepted around the chamber, at least from the opposition’s perspective. Since the boilermakers case, that has been the position on Australian commissions, such as the Australian Industrial Relations Commission and subsequent bodies, even under Work Choices. That is a significant impediment to getting that system to work.

Effectively, that would mean that the underpinnings of the system would fall away, because FWA could not make a decision on that because it is a non-judicial body. Therefore, the government does not agree that there is scope to allow the parties to involve FWA and has proposed amendments to enable this to occur. The amendments will make clear that the terms of the National Employment Standard can be replicated in an enterprise agreement. Where those terms are replicated, they will operate as terms of the agreement and disputes about these terms can be dealt with by FWA under the dispute settling terms of the agreement.

We cannot agree to the amendments that are being sought by the Greens, for a range of reasons, including those articulated earlier. It is open to the parties to discuss flexible working arrangements. It is also worth observing that there is antidiscrimination legislation in place. The NES entitlement to paid and unpaid carers leave also provides a source of support. The additional procedural requirements that these amendments impose fall under the hammer of being unconstitutional and there are better systems to use. We should not be trying to reverse a principle in a way that I do not think we can legislate for. I will leave it at that point.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I support the intent contained in amendments (1), (2) and (3) moved by Senator Siewert. I do not share the same concerns with respect to subclause (3), in that I see it more as an issue of process rather than substantive rights. But it would provide a process with which to deal with these matters. However, having said that, it seems that there is support for subclause (4), which for the first time will include consideration for those parents who have a child under 18 who has a disability. That is a significant improvement in trying to achieve a work-life balance and taking into account the needs of families.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I must admit that I anticipated that the government would not be supporting amendments (1) to (3). However, there is an issue that I raised during my earlier comments and which is also contained in a letter that we received from Minister Gillard. I would just like the minister to confirm that the government has agreed to review, as part of the series of reviews, the way that the right-to-request provisions have operated to see whether the manner in which they are written in the bill is effective and whether people are able to use those provisions to successfully request flexible working agreements.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Yes.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (4) on sheet 5744:

(4)    Clause 65, page 76 (lines 5 to 8), omit subclause (1), substitute:

        (1)    An employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:

             (a)    is under school age; or

             (b)    is under 18 and has a disability.

This amendment relates to one of the issues that we were just talking about. It is an alternative to my previous amendment and it is not as comprehensive. The amendment extends to parents of children who are under the age of 18 and have a disability eligibility to request flexible working arrangements. This is not as comprehensive as my previous amendment but it is a very important step for parents with children who have a disability. When you are a carer of a child with a disability you have a lot of requirements, a lot of medical issues that you need to deal with and you have a lot of other caring responsibilities beyond those that you would have if you were not looking after a child with a disability.

I strongly commend this amendment to the Senate as it will make a significant difference to parents of children with a disability. It may mean the difference between whether or not they can actually be a member of the workforce. In many cases if they do not have flexible working arrangements they cannot maintain their active engagement with the workforce. I strongly commend this amendment to the house.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

The issue here is what is currently in the bill with regard to requests for flexible working arrangements. Subclause (1)—and I do not want to overstress this point of view—states:

An employee who is a parent, or has a responsibility for the care, of a child under school age may request the employer for a change in working arrangements to assist the employee to care for the child.

It concerns a child under 18 with a disability. I am not convinced that when they turn 19 and have a disability there is any less of a requirement for flexible working arrangements. That is the problem I have with this. The disability carries all the way through, whether they are 18, 19, 20, 30 or 40, and that is the reason I was thinking that we need to strengthen that further, but I will support the amendment.

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

I indicated the opposition’s stance on this before we suspended at 1.30 pm, which was that we support amendment (4). Senator Siewert kindly referred to my pursuit of this matter during the committee stage and, as I indicated, I thought Labor or the government would be moving an amendment and therefore I did not, Senator Marshall. But there was a sign-off within the coalition in relation to this. I am delighted that the Greens have moved it.

I say to Senator Fielding that, looking at it from an employer’s point of view, one of the reasons that we were against the last lot of amendments was that I would not want a circumstance to arise where, potentially, parents of disabled children are not employed because of a request that might be denied being taken to Fair Work Australia, where it will be adjudicated and forced upon the employer. Sometimes these things, which are meant with the best intentions in the world, can in fact have a negative impact. That is why I think that having just the request as it is now is a very major step forward. I understand that the government will also be supporting this amendment, and I am therefore delighted that there will be unity in the chamber and it will be unanimous that the disability sector is going to be recognised for the first time. Given the work I do with them in my home state of Tasmania, I am delighted, but we have to be careful that sometimes we do not overcook the egg in trying to be helpful because sometimes there can be adverse consequences.

I commend the fact that the Greens have moved this amendment and I think it is a great day on which the Senate, as I understand it, will be supporting this amendment unanimously.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I thank Senator Abetz for that contribution, as well as everyone else, particularly Senator Siewert, who moved the amendment. The government supports this provision, as I indicated earlier today. It extends the right to request to the parents of disabled children and is a sensible amendment. It is one of those areas where there is broad support.

Question agreed to.

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

I would like to request of the committee that we move to the section dealing with the definition of ‘small business’. May I be so bold as to suggest that the opposition amendment, where we suggest that the number be 25, be put first. Next should be Family First and Senator Xenophon—

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Going down.

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

Yes, going down until we hit bingo and the Senate is in agreement, and I say to Senator Siewert that I have no doubt what that number will be. If I were a bingo player I would be asking for the number 20, but, nevertheless, I am still holding out for 25. That will then impact on Senator Fielding’s amendments in relation to right of entry. I think it would help clarify if we could have the issue of the definition of ‘small business’ dealt with in that order, if the committee is agreeable. I therefore suggest that we go to opposition amendments (2) to (5) on sheet 5739 revised 2.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I had an alternative proposal, unfortunately. I was going to encourage Senator Siewert to deal with some of her significant amendments so that we could make progress on those. In relation to those matters that you highlighted—I am looking at some of my notes to get the order right—my preference would be to deal with the Greens amendments in this area: those on sheet 5729, although we have dealt with one in the centre of that, and sheet 5744. There are a whole range of others. Today we have dealt with a fair few government amendments. I wanted the minor parties and the Independent to have an opportunity to progress some of their matters, because I think either we both disagree with them, so we can then get rid of them quite quickly, or we both support them, in which case we will test them with the Independent and Senator Fielding. I was looking at how to confine this, to effectively leave some of the tougher debates for a bit later on.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I was just thinking that, because we may take some time on the definition of ‘small business’, it may be worth tackling that now. I do not want to pre-empt what others want to do—I am just thinking aloud. My preference is probably to cover that now, but I do not want to force it upon anyone either.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

I will be guided by the chamber, but right now I have no idea what you want to do.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Maybe while we are waiting we could deal with clause 76 and Greens amendment (5) on sheet 5744, which seems to me to finish off that group of amendments that we have around the right to request. This particular one deals with the right to request an extension of unpaid parental leave. I suspect we could deal with that one fairly quickly while the negotiations are going on about where we go to next.

Alan Ferguson (SA, Deputy-President) Share this | Link to this | Hansard source

Senator, I am just concerned that nobody will be listening to anything you say, the way things are going at present. You are talking about clause 76 and your amendment (5) on sheet 5744—is that the one? I suggest you get up and move it, Senator Siewert, and we will continue the debate.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I do not want people to miss my pearls of wisdom, though.

Honourable Senator:

We’re listening.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I am assured people are listening. I move Greens amendment (5) on sheet 5744:

(5)    Clause 76, page 89 (after line 9), after subclause (5), insert:

     (5A)    If the employer refuses the request, the employee may apply to FWA to review the employer’s decision on the following grounds:

             (a)    because there has been a contravention of a requirement of this section; or

             (b)    because there has been a misunderstanding or misapplication of a fact relating to the application.

      (5B)    The application must be made within 7 days after the employer gives the employee a written response under subsection (3), unless FWA is satisfied there are circumstances which justify a late application.

      (5C)    FWA may make:

             (a)    an order for reconsideration of the request; and

             (b)    an award of compensation to be paid by the employer to the employee.

     (5D)    The amount of compensation must be an amount, not exceeding 26 weeks’ pay for the employee, as FWA considers fair in all the circumstances.

This amendment relates to the right to request flexible working arrangements and deals with the right to request an extension of unpaid parental leave. Similar issues arise here, where the bill provides what it calls a right but with no means of actually enforcing that right. Our amendment replicates the review procedure discussed with respect to the right to request flexible working arrangements—we had that debate not long ago—and ensures employees are able to apply to Fair Work Australia to review the employer’s decision on procedural grounds.

These are similar sorts of issues to those we were dealing with when we were discussing the previous set of amendments on the right to request flexible working arrangements. Here we have a right in the legislation, but you cannot enforce it in any way, so an employer can just say no and that is the end of the matter. We think, to be fair, you should be able to at least have a review of that decision. We had that discussion around the right to request flexible working arrangements for parents, and of course if you are on unpaid parental leave you are still a parent, but this is a slightly different issue of seeking to extend your unpaid parental leave.

Question negatived.

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

I am wondering whether I could repeat my request to the minister that we deal with the numbers for the purposes of the definition of ‘small business’. The minister says he is not ready. I would have thought—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I tried to indicate without it actually going into the transcript, I do have a cabinet meeting and there is an item that I wanted to be involved in. Senator Sherry is here to relieve me, but I wanted to deal with the substantive matters and the important issues that you have indicated myself. Senator Sherry had a significant issue that he wanted to deal with, which was super. Everybody knows Senator Sherry has a very longstanding interest in superannuation, so it was really a case of asking two things—first of all, to allow the Greens to move some of their amendments, and I am sure Senator Sherry can deal with those quite effectively—

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Are you saying I’m unimportant?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

He’s saying I’m not important!

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That is exactly why I did not want to do it in the transcript, quite frankly, because it seems to me that that is the point I am not making. I would return, having dealt with the matters that I have to deal with, and then we could get on with some other amendments, because there are a couple on the right of entry which I think are important. They are on the first page. There is the one you have highlighted on the definition of ‘small business’ and then there are one or two others that will be significant debates for this evening. One of those might end up being debated after the dinner break, depending on how long the other ones take. That was the broad order I wanted to follow, if I might be allowed to.

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

I have known Senator Sherry for quite some time and, whilst many a time I may question his capacities and capabilities, I say with great respect that Senator Sherry could well and truly handle on behalf of the government the simple and discrete issue as to the numbers that should be used for the purposes of defining ‘small business’. Can I simply indicate to the minister that, if that were possible, I would imagine that there would be four or five relatively short speeches as to why a particular number was favoured over another and we would then move to vote on that. I think that would help us—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Senator Ludwig interjecting—

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

Yes, but you are in the chamber now, Senator Ludwig, and if your amendment comes up I would be happy for it to be adjourned and then interpose the super amendment. But, whilst you are in the chamber, I can see no reason why we cannot get started, in the hope of dealing with the matter before you are called to cabinet. That is the proposition I am putting.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That’s why Senator Sherry’s here.

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

So cabinet is ready for you—is that what you are saying?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Well, I’ll have to go and find out.

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

So, no, it is not.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

My view is I can deal with government amendments and I can proceed with those according to the position we have put. Usually you require agreement to deal with it any other way; clearly we do not have agreement. We are now wasting time. I am happy to deal with Senator Sherry’s matters, to go to the Greens or to deal with the matters of the government.

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

The House sits tonight—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I must say it does not trouble me.

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

All right—done; that’s fine.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (9) on sheet 5729:

(9)    Page 118 (after line 28), at the end of Division 10, add:

116A Compensation for public holiday

        (1)    Where an employee works on a public holiday, the employee is entitled to the additional compensation provided for in the modern award that covers the employee.

        (2)    To avoid doubt, an enterprise agreement or individual flexibility arrangement cannot alter the entitlement to compensation in subsection (1).

This amendment adds a clause dealing with public holiday compensation. It is intended to ensure that employees who work on public holidays are appropriately compensated. We appreciate that penalty rates for public holidays are in the relevant modern award and believe that is the correct approach. However, we are concerned that such compensation can be bargained away with enterprise agreements or in fact with individual flexibility arrangements. As Professor Peetz stated in his submission to the Senate inquiry:

Public holidays exist for reasons of community celebration and benefit, and all workers should be entitled to such a benefit. For the majority of workers, this benefit takes the form of a day off to commemorate the particular occasion in the way that suits them. For a minority of workers … it is not feasible for all to have a guaranteed day off. Those workers should be paid a significant premium for working that day …

We agree with Professor Peetz. This amendment seeks to ensure that what Professor Peetz articulated occurs. We commend the amendment to the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I can indicate the government is not supporting the amendment. We believe it is not necessary as the bill already enables a modern award to include terms about penalty rates, including for employees working on public holidays. A clause in the modern award providing for this payment will ensure that the employee is entitled to be paid without the need for the proposed amendment. Enterprise agreements could alter the penalty described in the modern award but the agreement would be subject to the ‘better-off overall’ test. If an entitlement such as a penalty was reduced or removed, the agreement would need to provide a more favourable entitlement in another respect to ensure the agreement passed the test. The same test will apply where an employer and employee enter into an individual flexibility agreement, thus ensuring an employee will be compensated if the award entitlements are reduced or removed.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

This is an important issue and something that Work Choices totally underestimated when it was being proposed as the last lot of IR changes. I think this strengthens the bill to make sure that there can be no risk of public holidays being traded away without the right sort of compensation. I know the government would say that the modern awards or the National Employment Standards take care of it, but this puts it squarely in the bill rather than in the awards or the National Employment Standards—although they are obviously referred to within the bill and are part of it, I suppose you would say. I do not think this has as much danger or would cause the problems the government is describing. So we are supportive of this amendment to cover compensation for public holidays.

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

Very briefly, the opposition opposes this amendment. It does remove the ability for industry awards to deal with these sorts of issues on an industry by industry basis. Even before certain changes were made to the industrial relations framework in 2004, the reality was many awards were moving away and these were negotiated and agreed to by workers, unions and employers. Indeed, our friends in the media had an award whereby they were not compensated specifically for working on public holidays or weekends. It was put into the total mix of their overall pay.

I know those businesses that do pay penalty rates for particular days of the year are in great difficulty. I know that with my local Coles supermarket, which pays penalties on Australia Day, all the young workers queued up to be put on the roster for Australia Day, for the extra money. As for protecting family life, in fact they were all queuing up to work on the public holiday, which is exactly counter that reasoning. That then provided difficulties for the employer as to which people would be favoured, because not all of them could be rostered on on Australia Day. As a result, some employees had to be chosen over others and those that missed out literally did miss out financially. So it does cause problems for some employers. So, having said that, I note we as an opposition are minded to oppose the Greens amendment.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (11) to (13) on sheet 5746:

(11)  Clause 119, page 121 (line 2), omit “The”, substitute “Subject to subsection (3), the”.

(12) Clause 119, page 121 (before line 7), at the end of the clause, add:

        (3)    If, immediately before the time of the termination, or at the time when the person was given notice of the termination as described in subsection 117(1) (whichever happened first), the employer is a small business employer, the amount of the redundancy pay equals the total amount payable to the employee for the redundancy pay period worked out using the following table at the employee’s base rate of pay for his or her ordinary hours of work:

(13)  Clause 121, page 122 (line 11), omit paragraph (b).

These amendments relate to the issue of redundancy payments. The bill continues the Work Choices provision denying employees of small businesses redundancy pay. This comes after a 2004 Australian Industrial Relations Commission decision extending redundancy pay to small businesses. The full bench of the AIRC said in that decision:

Having considered all of the material and submissions with respect to the issue we have concluded that we should partially remove the small business exemption from severance pay. As a general proposition the employees of small businesses are entitled to some level of severance pay. The evidence establishes that the nature and extent of losses suffered by small business employees upon being made redundant is broadly the same as suffered by persons employed by medium and larger businesses.

It is also clear that the level of the exemption is to some extent arbitrary and can give rise to inequities in circumstances where a business reduces employment levels over time. While some small businesses lack financial resilience and have less ability to bear the costs of severance pay than larger businesses, the available evidence does not support the general proposition that small businesses do not have the capacity to pay severance pay.

Access to redundancy pay is even more important now for employees as we enter these very difficult economic times. Without redundancy pay, more workers will end up relying on the state to survive. We note the bill continues the ability of employers to apply to FWA to reduce redundancy pay, including down to nothing, if they can demonstrate an incapacity to pay. We do not see why employees of small businesses that have the capacity to pay should be denied this right.

I also note comments by the Deputy Prime Minister during question time yesterday, when she was having a go at the opposition, on expanding the definition of small business and how that would lead to employees losing redundancy pay. She said:

Let every Australian worker, particularly those who work for small businesses, understand that … the Leader of the Opposition and his Liberal Party have drafted an amendment and committed themselves to supporting an amendment that rips redundancy pay off hardworking employees.

But that is exactly what the Fair Work Bill does by extending the Work Choices exemption for small businesses on redundancy pay. The ALP is not returning to the position before Work Choices and giving small business employees redundancy pay. This is what in fact our amendment does. You can argue as long as you want and all you want about where the line is drawn, but this government is still drawing a line denying hardworking and long-serving employees redundancy pay. However, a few short years ago, before Work Choices, these employees would have been entitled to it. We believe this is also an example of the consequences of putting minimum conditions in legislation and thus in the hands of us politicians. Given the decision of the AIRC that there was no evidence to support the proposition that small businesses could not afford to pay a lower standard of redundancy pay, to now take that right away is a political decision, not one based on the evidence. It is a decision that will have severe ramifications for the many employees of small businesses in the next few years.

We believe that our amendments are very significant and replicate the AIRC decision in extending a more limited right to redundancy pay to employees of small businesses. We commend these amendments to the chamber. We think they are important amendments. I cannot understand why the ALP has not, particularly after the strong words of the Deputy Prime Minister, who is in fact the minister for industrial relations, moved further on redundancy pay. It is clearly not fair to workers in small businesses and the Greens believe that these amendments are much more appropriate for a fairer industrial relations system in this country.

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

The opposition opposes these amendments. As I have been saying throughout the debate, we measure amendments and proposals against the yardstick of impact on jobs and small business. In the ideal world everyone might get entitlement to redundancy but, once small business learn that they might be made responsible for certain redundancy payments, the cost of employment increases. Basic economics tells you that once the cost increases for an item, even if it is labour, the demand for it will decrease. As a result, small businesses will try their utmost to ensure they do not have to have that extra impost and therefore they will not be employing as many people. When you are confronted with that reality—as somebody like me who moves amongst small business people on a very regular basis is—you realise the long hours that small business people work. One of the reasons for that is they do not and cannot afford to put on another employee. The more costly you make it, the more likely you are to deny somebody the opportunity of a job.

It sounds good in principle but when you then apply it in practice it means that small business people, who are the engine room of employment in this country, will be less likely to employ. I am then confronted with a situation: is it better for employers to employ people without redundancy or not employ them at all? I say it is better that they be employed even without redundancy provisions than not be employed at all. That is what guides our stance in relation to this.

Can I finish by simply saying in relation to this issue that we are talking about small business in these amendments, yet we have not defined what small business is. That is why I again put the proposition to the Senate, before we go through all these amendments, that we should in fact have fixed by the Senate what the number of employees that defines a small business is, so that we can actually debate with some certainty what it is we are talking about. I note the minister is not minded to do this, but I think this is another example as to why the issue of small business and the numbers should be determined now rather than towards the end of this debate.

Question negatived.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (14) on sheet 5746:

(14)  Clause 123, page 123 (line 31), after “casual employee”, insert “, except a long-term casual employee”.

This relates to redundancy for long-term casual employees. We believe that redundancy pay should be extended to long-term casual employees. The very notion of long-term casuals is a nonsense. Casuals are, by definition, supposed to be temporary workers. Given that in Australia we have developed this concept, and given that it involves having consistent work for at least one year, with the expectation of further work, we strongly believe long-term casuals should have the right to redundancy pay. Professor Peetz in his submission to the inquiry provided evidence to demonstrate that long-term casuals are more disadvantaged than permanent employees when made redundant.

We also take this opportunity to note our disappointment that the bill does not include in the definition of ‘genuine redundancy’ all the usual matters the Industrial Relations Commission has considered in the past. For example, the definition does not include a consideration of the fairness of selecting the employee made redundant nor a consideration of whether the employee has received appropriate compensation for the redundancy. These long-term considerations by the commission are ignored in this bill. We believe that our previous amendments and amendment (14) put more fairness back into the industrial relations system in this country. We think the notion of long-term casuals is, as I said, a nonsense, but they are in fact a reality in Australia and therefore we should be protecting their rights and conditions and we believe they should have a right to redundancy pay.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Long-term casual employees have historically not been covered by notice of termination provisions. Long-term casual employees were excluded from the notice of termination provisions before Work Choices and this also reflects the outcome of the 2004 redundancy test case. The standard clause developed by the Australian Industrial Relations Commission—as it then was in 2004—in the redundancy case expressly excluded casual employees from the redundancy provisions and provided that notice of termination must be given to terminate the employment of a full-time or regular part-time but not casual employee. The commission stated in its decision that it would be inappropriate to award severance pay for casuals. There is no real reason to depart from what the commission has said.

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

The coalition’s stance on this is to oppose the amendment. One of the unfortunate consequences of this amendment, if it were to pass, would be that its application in practice would mean that, chances are, a casual employee would not last for 12 months. Every time you increase the cost of employment you decrease the opportunity of employment. As unemployment is going up in particular at the moment, I would have thought that these sorts of measures would be unwise. Even if the economy were zooming along very well and everybody had plenty of money, like there was about 18 months ago, we would still be opposing it because there are many casual employees who are in fact happy and want to be casual employees, and to make it more costly for them to be in that category may well cost them the opportunity of that ongoing employment. So we as a coalition, on the measure of jobs and small business, are opposed to this amendment.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

Senator Abetz makes an excellent argument for why we need strong unfair dismissal laws in this country. I am aware that a lot of people do want casual work, but I challenge the concept that it is the preferred choice of work for most people. I do not believe that the argument Senator Abetz put up is the reason why workers should miss out on redundancy pay or entitlement. I know of many workers who have continued to be employed as long-term casuals who would prefer not to be, but it has been their only option. I believe those people deserve redundancy pay. It is clear that the chamber does not agree with me, which is unfortunate because I think it would progress a fairer and more robust industrial relations system.

I am disappointed that we continue to use Work Choices as a standard. It was in Work Choices. Part of the problem with this legislation is that it measures itself against Work Choices rather than what should be a fair industrial relations system. Many of our other amendments also seek to take us to a much fairer industrial relations system and not just measure the legislation against Work Choices, which we all agree significantly undermined workers’ rights.

Question negatived.

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

I move opposition amendment (18) on sheet 5739 revised 2:

(18)  Clause 139, page 138 (line 14), after “superannuation”, insert “, but ensuring employers can nominate any complying superannuation fund as the default fund”.

What this amendment seeks to do is of course maintain the employee’s right to choose his or her superannuation fund, so they have that choice, but, if that choice is not exercised by the employee, to allow the employer to nominate a superannuation fund as the default fund at a workplace as an alternative to the one nominated by the modern award.

Superannuation is now an allowable award matter to be included in modern awards. The Australian Industrial Relations Commission has issued modern awards that limit the default fund to industry funds. We believe that our amendments are beneficial in that they allow an employer to nominate an alternative super fund—the choice of fund remains with the employee—but it also allows scope for the employer to negotiate or choose a better fund that is not an industry fund, such as one that provides reduced fees, better returns or better insurance cover. It also allows the employer to offer a default fund consistent with the employer’s business. For example, there are, as I understand it, various types of social and ethical super funds—that is how they describe themselves. I am sure all the others are ethical as well, but that is how they sell themselves. If a particular business is so minded then that should be a right that is available to the employer, because, if the employee disagrees with the employer’s choice of fund, the employee’s choice would prevail.

I turn to some information that I have. There has been some suggestion that industry funds are substantially better for those who invest in them. I am advised—and I can go through the detail if need be, depending on the reaction to that—that there are many funds now in the private sector that are in fact a better buy and cheaper than industry funds. I note that one of those that has been mentioned in recent times has just increased its charges by 50 per cent. I indicate that some of the industry funds are themselves asking for this.

I understand that CareSuper is concerned about the default fund policy denying the opportunity for employers to nominate a fund. I understand a letter has gone to the Australian Industrial Relations Commission from the CEO of CareSuper, who called for an employer to be able to nominate CareSuper as a default fund for relevant employees. The letter goes on to say:

If new employees of administrative people within various industries can no longer nominate CareSuper as a default fund this will have the combined effects of making it more difficult for employees to belong to the fund that is designed to meet their specific needs and adding to the proliferation of superannuation accounts and unnecessary costs associated with these multiple accounts. CareSuper also objects to REST being awarded a monopoly in the retail sector. CareSuper notes that it has over 2,500 participating employers, who contribute to over 14,000 members in the retail sector.

I am also in possession of a letter from the BT Financial Group. As I understand it, they provide superannuation for approximately 1,160 employers and over 44,000 employees. They advise:

In many cases, employers choose BT Lifetime Super as their default fund after an active tender process. These tender processes assess a range of features of various superannuation funds, including fees, insurance and member services, against the needs of a specific workplace.

Often within the public debate only fees are compared as opposed to all the other matters and the total package. I am advised:

The average employer using BT Lifetime Super has approximately 40 employees. BT Financial Group are concerned that this bill will prevent employers in a large number of industries from selecting BT Lifetime Super as the default fund for their award covered employees.

I happen to note, just as an aside, that BT exists in a particular state of Australia. I understand they have an office in Adelaide, in South Australia. They say:

The bill will therefore significantly reduce the ability of BT Lifetime Super to win business from employers.

What will that do?

… the resultant risk of job losses at our Adelaide office.

They also advise:

A monopoly has been awarded in relation to award covered employees in the following industries: textile, clothing and footwear; hair and beauty—

I think Minister Ludwig and I touched on hair and beauty the other day and thought it did not have much application for either of us—

general retail; fast food; and higher education. Many of these industries are major employers of award covered employees, and in other industries competition is restricted to a limited number of industry funds. Award modernisation will effectively lock all other superannuation funds from a very substantial segment of the market.

BT is not aware of any rationale as to why the commission would pick one super fund over another. I think the Industrial Relations Commission has already said that it is not going to be sitting in judgment on fees, member services and insurance policy here and there as to what is going to be the most beneficial for the people under the particular ward. So, of course, what is going to happen is that those large funds that in particular have big employer/big union involvement will undoubtedly be submitted as being the default fund, squeezing out the smaller superannuation funds. There is that African proverb that, when elephants mate, the grass gets trampled. When big business and big unions get together with their big industry super funds, the small super funds and also the workers, who would get an extra benefit, will be the grass—they will be the ones that get trampled. That is what is motivating the opposition in this matter.

The fund with the biggest monopoly, which is AustralianSuper, has just raised its base fee by 50 per cent. If that is—and I understand it has already been—nominated as a default, in those circumstances, once it is nominated as the default fund, it sits there and it then can, as AustralianSuper has just done, increase its fees by 50 per cent and everybody will be required to contribute to it unless they nominate otherwise. We say, especially in the context of small business—and other employers, of course—that they should be entitled to nominate another fund, should they choose to. And I think that is especially relevant for businesses in smaller regional areas that might, for example, want to invest in a specific state based superannuation plan or in a specifically environmentally minded or ethical superannuation fund. I see no reason why the employer should not also be given the opportunity of nominating a fund and, if that fund is to the dissatisfaction of the employee, the employee can nominate his or her own super fund or say to the employer, ‘I don’t like yours,’ and avail themselves of the default fund that is in the award in any event. I commend this amendment to the Senate.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The government does not support this amendment. I would firstly make the point that this amendment, if passed, will have significant ramifications for the superannuation system—and I will explain why shortly. What is interesting about this amendment is that, from my knowledge, we have a situation on this issue where the employer organisations and the union movement are in agreement, which is pretty unique in terms of the legislation we are dealing with. Why is that? Because employer organisations who represent small, medium and large business believe that the current default arrangements are best for business—small, medium and large. They do not want a change in the current arrangements, and I might point out that the effect of the amendment is a very significant variation to existing practice and award provisions. The opposition is trying to change the existing provision in state and federal awards, which is what the government are incorporating into this legislation. We are not putting in new provisions; we are maintaining what has been the status quo for 20 years in state and federal awards. And it is not just one industry fund; some awards have two, three or four. So we are not changing the status quo with this legislation.

Another important point to make is that it is not just industry funds that are default funds. Corporate superannuation funds are default funds, and in that case they are incorporated through enterprise agreements generally; there is a default fund. And where that has been incorporated in an enterprise agreement there is no other default fund, usually. So we have a situation where, in the main, the default funds in awards are industry funds and in enterprise agreements they are often corporate funds.

I think it is important to understand that if someone chooses a fund, if Joe Smith decides he wants fund ABC, that right is conferred through the choice of funds legislation, and that does not change. So, for those who want to make an active decision, the provision in the legislation does not change the position for those who want a choice of fund. It raises a very controversial issue. For those individuals who choose a fund outside a default fund, how do they choose? Invariably, they choose through a planner—they are advised to choose. That has raised a whole range of very complex and, I have to say, controversial issues about conflicts of interest. The planner says, ‘I advise fund ABC,’ and the individual who is choosing is advised to choose. That raises a set of issues around commissions, servicing et cetera which are very controversial in the retail sector.

Why is the default fund so important? In a compulsory system, a significant number of members do not choose a fund. You cannot force choice on people. Therefore, in any system there is a default fund arrangement. In other countries it is often the government that provides a default fund. In our case it has been an industry fund, it has been a corporate fund and it has been a public sector fund. Public sector funds are default funds albeit usually by statute not award; corporate and industry funds are underpinned by industrial arrangements. As I said, that has been the position for the last 20 years. If this bill is passed unamended, that position does not change. If the Liberals’ amendment is passed, there will be a significant change in those funds that become default funds.

Let us look at the long-term 10-year average return for each of these sectors. For freestanding corporate superannuation funds, the 10-year average return is 7.7 per cent; for industry funds, it is seven per cent; for public sector funds, it is 7.7 per cent. They are all underpinned by a range of agreements, either awards, industrial agreements or legislation. Let us go to the retail sector. This proposed change, if passed, will primarily benefit the expansion of the retail sector as a default fund, and bear in mind the Liberals are submitting that the default fund should be chosen by the employer, not the member. The employer does a deal—and I will get to the deal in a moment—with a retail fund. That is what will flow if this amendment occurs. What is the average long-term rate of return for a retail fund? It is 5.7 per cent. So we have a situation where, if this amendment is passed, there will be a significant expansion of retail fund activity as a default fund through some sort of agreement between the fund and the employer. Bear in mind the individuals have no say because they default. So the status of default fund becomes very important.

I wish I could give you the long-term rate of return for every superannuation fund in Australia—I think that would be very useful to have. The problem is—though not exclusively—that the retail funds will not allow the publication of individual long-term fund data. They have opposed it. They argue that is because of statistical analysis. I cannot give you a breakdown on how good and bad these funds are in any sector because APRA cannot publish it yet. They are going to publish at some point in time. So the status of a default fund is very important, and we are arguing that there should be no change to the current arrangements.

The other point I would make is: Senator Abetz is right, there are arrangements that exist through the agreement of the employer and the business, and those arrangements do not change. My understanding is that the commission has said that current arrangements reached between a retail fund and an individual enterprise continue—and there is the case of BT that Senator Abetz quoted. So the status quo continues with the current arrangements that a retail fund has with an individual employer. There is no change to the current circumstances.

Why should the employer have the right to choose the default fund? In our system the independent industrial commission determines the default fund. That is a better way of selecting a default fund than the employer choosing the default fund under some sort of tender arrangement with a retail fund.

Let me get to these tender arrangements. The fact is that these are secret. We do not know the outcomes of these tender arrangements. That perhaps is a defect in law—I will acknowledge that. Our system does not have legal criteria for the determination of what a default fund is or what is in the best interest of a member. Our superannuation regulatory system does not have that. It does not have a set of criteria to oversee these tender processes. They do not exist.

We do know about the outcomes. One of the outcomes was featured on the front page of yesterday’s Sydney Morning Herald. What happens—and this is relatively secret, (1) because you cannot get the data, and (2) because the industry have not been too keen to highlight it—is that when a deal or an arrangement is entered into between some retail funds and some employers to provide a default fund, yes, the fees are good fees and the rate of return is a good competitive rate of return. The fee can be anywhere between three-quarters of one per cent and one per cent. But what happens when the employee leaves the employer in these arrangements, in many cases where we have a deal between a retail fund and an employer? Bear in mind there are no criteria and there is no open scrutiny. When that individual leaves the employer, if they are made redundant or retrenched or moved from that employer, in many cases the individual is moved out of that account in the retail fund into another account and their fees double, and sometimes they more than double. Some retail funds provide a good cost-effective fee in the deal with the employer but when the individual employee, who has become involved in these arrangements by default, leaves, without their knowledge—and it is perfectly legal—their fee increases. They are in the same group fund but their fee increases. This is a serious abuse of the system and it is a consequence of the fact that we have no criteria for determining what a default fund is, and I acknowledge that weakness in our system.

I have been proactive on this matter. My policy concern from a superannuation point of view is that, when I look across the superannuation system, to varying degrees there are funds that underperform long term. There are industry funds, retail funds, public sector funds and corporate funds and some of them underperform. Regrettably, we cannot yet release the data but APRA intends to release it. So we will be able to see all the funds’ performance—and there are 600 of them. What is a good fund in terms of a return? Fundamentally, the bottom line is: a rate of return—not the services option, not the 200 investment options. Fundamentally, the bottom line is: what is the rate of return to that member over the long-term 10 years? We do not have that data yet.

There are controversial issues, some of which I have touched on today. There are controversial issues about conflicts of interest, commissions and investment practices, particularly in the current climate. The superannuation system has a range of controversial practices. We have got 6.3 million lost accounts. They just sit there and are eaten up by fees. We have got a range of difficulties with our superannuation system, which I acknowledge. My argument to the industry has been: we do need to examine these issues—I call it ‘renovating the house’. I wrote to the industrial commission and suggested that they look at the long-term performance of these funds. Unfortunately they cannot get the data because it has not been published yet. It will be published in April or May, as I understand it. Therefore the commission, having determined not to examine the issue of long-term default funds—and I understand why; I am not being critical of them—have communicated that to us and I have indicated that we will need to look at what the criteria should be for a default fund. We should look at that. Nothing exists in law at the moment. We should look at the criteria for the contract arrangements that are entered into between funds and an employer, and many of them in my view are to the disadvantage of the default member. Some of the fees are, frankly, a blatant rip-off. But there is no law that stops that at the moment. We should look at some of these investment issues. We should look at the conflicts of interest, and I would suggest that the best place to do that is a comprehensive examination of the way the super system is operating. (Time expired)

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I indicate that I do not support the position of the opposition in relation to this. My view is that there should still be a choice of super for employees. They can always switch to another fund. If they are persuaded by another fund that they ought to go to that fund, they can do so. I think the fundamentally safe option is not to accept this position, although—and I say this with affection—if Senator Sherry gives another 15 minutes on super, I may change my position!

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

If I heard the minister correctly, he indicated that under award modernisation a number of default funds might be included in the award. In those circumstances, who would determine where the superannuation contribution of a particular employee went?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The independent commission determines the status of a default fund or funds. Some current state and federal awards have one fund. Some have a number of funds. Some accept a corporate fund. In the case of CareSuper, which you have alluded to, my understanding is that CareSuper are not supporting your amendment They are arguing at the commission that they be allowed to be a default fund in a number of these awards as they are modernised—in other words, that the status quo be maintained for CareSuper. They are not arguing for your amendment.

I take heed of Senator Xenophon’s comments. I will make one other comment because I want to put this on the public record, particularly for Senators Xenophon and Fielding and the Greens. I have indicated that I would give a public commitment. This is my commitment: the government will put in place a process to examine the establishment of criteria for default funds. We are going to commence a process to undertake this work, but at the same time we will put in place a process to examine other issues that are being highlighted in our superannuation system. That includes controversies around the definition of a default investment option. That includes issues relating to investment products and their definitions. That includes lost accounts; we have to do something about lost accounts. That includes what I call conflicts of interest—the conflict between a retail fund owning a planner group and commission based selling. There are a significant range of issues that I accept are of contention in our system; therefore, I say for the public record that we will put in place a process—I have dubbed it ‘renovating a house’—to examine all these issues comprehensively.

For the time being, on this issue I have indicated to every sector of industry—the retail sector, the corporate sector, the industry fund sector—that it is status quo until we put in place a comprehensive examination of these issues. They are very complex and they are interrelated. That process will occur, and I think that, rather than trying to deal with claims about what is right or wrong with our system, is the way forward. In this context, the government’s bill maintains the status quo rather than significantly amending it; it is only a one-line amendment but it has very significant implications. Rather than trying to fix people’s particular problems and concerns here, we do it through a proper examination of the superannuation system.

I put that on the record particularly for Senators Fielding and Xenophon and the Greens. I know Senator Fielding has a keen interest in this area because of his background, and I think we need to deal with these differences of opinion in a comprehensive way across the totality of the system. If you change one element of the system it has a significant impact on the others in a whole range of disputed areas. This is a process I have put forward to a number of these different major organisations and, whilst I can give no indication as to outcomes, I think there is a generally emerging consensus that we need to have a process to look at these issues, including the issue of how you define a default fund. I strongly suggest that this is not the appropriate time to try to fix these problems that various contending parties are claiming. If the Liberals’ amendment is rejected, the status quo continues until such time as we comprehensively examine the operation of this area and all the other areas of contention in the superannuation system.

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

If I may briefly follow up, the question was—and I think on the basis of that answer I might have Senator Xenophon’s vote—if three funds are nominated by way of default in the award, what determines into which fund the payment of each individual employee’s super guarantee goes?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

The commission does that. The independent commission will nominate a default fund or funds. The individual employee does not make a choice of fund. That is default fund only.

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

If I may continue on this very issue, it is interesting to note—this is very important—that the Australian Industrial Relations Commission on 12 September issued a statement accompanying the release of 14 draft priority modern awards. This is what they said:

We do not think it is appropriate that the Commission conduct an independent appraisal of the investment performance of particular funds. Performance will vary from time to time and even long term historical averages may not be a reliable indicator of future performance.

The Industrial Relations Commission is going to make the determination for each employee without looking into what it believes may or may not be the best fund.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

You are right, Senator Abetz; I have already said that. As the Minister for Superannuation and Corporate Law, I wrote to the commission and said, ‘Look, you are continuing on past practice over the last 20 years, but I would ask you, the commission, to look at criteria—and, in particular, long-term investment performance; I think that is pretty fundamental and often is a reflection of fees—for defining what a default fund should be in the best interests of the member.’ For one, the data is not publicly available. They cannot get the data; no-one can get the data yet. I want to make data about the long-term performance of these funds publicly available. The commission, I assume, did not have the expertise to do that, but I did ask them to do it.

Now, I do not think we should leave it there. I have said that we do need criteria for a default fund. I put that on the public record. I indicated a few minutes ago that we are going to have a policy process in the context of superannuation and all of these contentious issues and the way the system is operating can be examined. I am more than happy to put that on the record, and I have indicated that to various people. But we should not be making significant changes in the context of this debate and this legislation. These proposed changes are significant in their implications. People can argue about the outcomes and who gets what, but there will be a significant change in the status of default funds if your amendment is passed. I argue that it is not the appropriate time. Let us look at these issues as a whole, develop some effective policy, have some criteria in this area for default funds—whether it goes into statute or not remains to be seen—and do the job thoroughly in that way rather than trying to arbitrate between contending parties at the present time. We have an independent commission to oversee this practice. I do not think it is an optimal process, so let us leave it to the comprehensive examination. Ultimately, we can deal with it in the context of total super policy.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

First of all, I worked for five years in the industry superannuation fund area. I think that should be placed on the table; I do not want someone saying, ‘Well, you worked for an industry super fund before so you will have a bias.’ I make it quite clear that I have for five years worked for an industry super fund. The issue here, I suppose, is choice, and let me keep on going here, because I know this area reasonably well and understand that superannuation choice is a good thing. We also know that there is not a lot of switching going on. You can get the figures, but it is not a high percentage.

Unfortunately, it is only as you start to lose your hair that you show a lot more interest in your superannuation; when you are younger, you do not really pay enough attention to it. I will not go to the pollies’ super. When someone joins a company or starts a new job, if you are under a certain age—probably not going bald—you do not pay a lot of attention to your super. A lot of paperwork is usually shoved at you and you know which ones are really important—your tax file number and those things—and have be filled in, but one of the other ones, on super, says, ‘Well, look, if you don’t make a choice then this will be the default fund.’ So the default fund is very important. There are a lot of people in a superannuation fund just because of the default arrangement from the workplace that they first started at. This is how people get two or three funds; they have two or three jobs over a period of time and end up with two or three funds. Everybody says that you should roll them in together, and that is probably highly desirable, but you do not get around to it. In fact, you could streamline it even more to make it really easy. Frankly, when you have made the decision to change funds, it is just too bloomin’ hard. Again, I will not go there, but the default superannuation fund is a very important issue.

Now, the Minister for Superannuation and Corporate Law has said that the current arrangements with the Industrial Relations Commission are not optimal; I understand that. I am not having a go at you here, Minister; I am just saying that it really is not optimal, because, when you think about it, what is the process of the choice there? They obviously have some criteria. I do not know what exactly they are, and I am not sure whether you can table the criteria they are currently using in detail and how often that is reviewed. Normally, if you select a superannuation fund, there is a review process. The Industrial Relations Commission is an umpire, but some people feel a bit shut out of that process. Maybe the minister could answer this question: out of the awards, what percentage have not chosen an industry super fund as the default fund?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

We simply do not know, because the process has begun, as I understand. There have been 14 awards established so far, so we do not know. One of the difficulties in this area is getting good hard data right across all the areas.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

But based on the current awards—not the modern ones but the existing awards that are out there—a lot of the arrangements are industry funds. I am not against industry funds—I worked for them for a number of years—and I am not against corporate funds, as they are called. But there is an important issue to do with how the default fund is selected. That is a really important issue, given that so many people stick with the default for quite a period of time. You can get into a debate about who has better returns, and that is probably going to be something that is still unfolding over the year. I would be interested to know when the APRA stuff is likely to come out—just a likely date; I will not hold you to it, of course. Then it comes down to this choice. Once someone is in a default fund, they can choose to take their money somewhere else. They have to watch the exit fees and all those sorts of things. They are important criteria when you select the default fund. The optimal process would probably be to allow the enterprise agreement to include the flexibility to select the default fund.

You would probably say that there is a process to look at those issues. The problem is that there are a lot of businesses that do not have an enterprise agreement that would be covered by an award. That means that they are going to have the superannuation fund forced on them through the award. Is that true for businesses that do not have enterprise agreements? Each worker would be covered by the relevant award. If there is no enterprise agreement, then obviously the award would therefore force them into the default fund. Is that true?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Yes. That is the current arrangement, with one caveat: there are existing arrangements in agreements between corporate and retail funds and individual employers. There are negotiated deals, if you like, between employers and retail funds. There are no criteria for these, by the way; there are no criteria in law overseeing the deals that are cut between a retail fund and an individual employer. I cannot get the data; we just do not know. That has led to some of the problems that I referred to. Without pre-empting where you are going, we are not going to disrupt any existing arrangements. Where there is a particular provision that an employer has entered into with a particular fund, the status quo will continue.

My argument is that it is not a perfect system; deals between retail funds and employers do not make a perfect system. It is open to abuse. It would be nice to see these fees and look at the evidence, but you cannot get it—although I intend to get it, I have to say. We intend to publish this data some time up to June. The consultations are going on at the moment.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I want to follow up on the question that I had about the Industrial Relations Commission. When will that have a more public and accountable process and criteria? Given that the modern awards are being created now, when would that be public so that we can get a feeling for how different types of funds could pitch for that business?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

We have the initial 14 national awards with indicative provisions in them at this stage. They are technically drafts. The commission is going through a process. It will hear the position of state and federal areas that have not yet been developed in terms of those 14, apparently doing that in tranches. The operative date is 1 July next year. The status quo continues until 1 July next year anyway. For example, CareSuper—or anyone else for that matter that wants to become a default fund—can put a submission to the commission and they may or may not be accepted. The commission will oversee that process.

Are the commission going to develop criteria? I wrote to them and suggested that the criteria should primarily be long-term performance—say over 10 years—in the best interests of the member. The commission have not got the data to do that, so I understand their reluctance. But I would argue that we need criteria. The best way to get that is as part of superannuation policy.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

The issue here is that there is a bit of secrecy about how the Industrial Relations Commission will make that choice. Competition is good to drive prices down. You have to be careful with that. I do not believe in open slather market forces; I believe in some regulation. Too much regulation and you stifle the market; open slather competition means that the biggest and best wins. I believe that we should be somewhere between the two. But how do we get industry funds and corporate funds feeling as if one of them is being cut out of the process with the Industrial Relations Commission? It is a genuine question. I have a genuine desire to understand that process. By all means you should be looking at returns over the long term—say, the last 10 years. But you may want to review that every three years and look back at the last 10. My question is: how often does the Industrial Relations Commission look at the default fund to allow those competitive forces to drive the best fund as the default?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

In terms of the examination of the modern award structure and how it is working—and this would include superannuation provisions—there are four-year reviews. There are full public reviews of all the modern awards. Anyone can make submissions about their content, including the superannuation provision in respect of default funds.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I will now be really specific to see if we can nail this one: when will the Industrial Relations Commission publish their criteria for selecting default funds in awards?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

They publish reasons for their decisions in respect of particular provisions. They will give their reasons for particular decisions. Parties, including retail fund organisations such as IFSA and others, put submissions to the commission. Then the reasons are published for the decisions on the tranches that are being considered in the modernisation process.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Is a public tender, just for superannuation, held by the Australian Industrial Relations Commission for each award? Is there a tender process for each specific award and are the criteria published—not just the results but the actual input? Is there something that states what the tender conditions are when calling for public tenders for the default fund for a specific award?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I am going to say ‘yes’ and ‘no’ and I am not trying to be smart. The governance of a profit-for-member or not-for-profit industry fund is overwhelmingly a tender process. The trustees tender out the investment, the administration, overwhelmingly, but there are some exceptions.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Senator Fielding interjecting—

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I know what you are getting at, so I would argue that there is a tender process and, interestingly, some of the retail funds—I will not name them—actually win the tenders for the investment. I am sure you are aware of that. But is there a tender, say, for building and construction? Does the commission issue a tender specifically for that? The answer is no. The other point I will make is that there is no public tender where an employer does a deal with a particular fund. We do not see the provisions because they are kept secret. You are highlighting what I think is a weakness in our system. I do not necessarily agree that what you are saying is the solution. You are highlighting a weakness. We do not know and I think we need to improve this. So we will publish the data and the commission has a process for the four-year reviews. All the parties, including those who want to be a default fund, can put their submission to the industrial commission. It may or may not be accepted. The reasons will be published.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I am mindful of the fact that we have used up some time here and we have the entire bill to go through. As we know, in Australia there is a huge amount of money in superannuation funds so it is a sizeable issue and the default fund is very important. Would the government be willing to commit that the Australian Industrial Relations Commission would hold a tender process for each specific award for the default fund? Because you were saying that the review process is every four years, you could call a tender every four years for each award so that competition would occur for each of the default funds.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I cannot commit to that here and now because the Australian Industrial Relations Commission is independent. As I indicated, I wrote to them suggesting a process. They said, ‘Fair enough, but we do not agree with you, Minister.’ So I cannot indicate anything publicly. I have not had any discussions with them about that. They are independent and have the position of a court so I would not dare interfere, quite rightly. I can indicate at this point in time that Fair Work Australia is essentially continuing the status quo, but we do agree in future that when the performance data is published—and I have indicated when that will be—the four-year review process will be conducted to allow fully informed decision making. That is what I can indicate to you at the moment. But as I have said to you, Senator Fielding, I do intend to set in train a process to look at the issues and I think it is perfectly reasonable to look at the issue you have suggested.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I do understand that it is an independent body but the parliament of Australia makes law for Australia and we can make law that would instruct the Industrial Relations Commission to hold a specific tender to choose a default fund for each award. I think that would be the best way to solve the issue. We have already heard and we all would agree that the current process has some problems. I am not saying that it is the existing arrangements, but the issue is that getting the best deal for a default fund is kept in secret and there is no competitive force over a period of time as there would be if there were to be a tender process every four years. That is Family First’s suggestion, given the number of people who rely on the default fund. The government’s suggestion is basically the status quo—with some other performance criteria and some processes—but it does not go as far as calling a public tender for each particular fund. The opposition’s process is to leave it with the employer to make that choice, but workers do not have a say there either. Does that make sense to you? I am caught again between a rock and a hard place and I think there is a better way for Australia to do this if we think about it.

The Industrial Relations Commission is making a very big decision on behalf of a lot of Australians. That is okay but we should ensure that we have proper public scrutiny and that we have a process that is robust and that will deliver the best result on an ongoing basis. So every four years a public tender would be called for each specific award and I think that may go some way towards getting something that is between what the government is intending and opening up the process to choice and competition, as the opposition is calling for. I wonder whether you, Minister, could give some sort of commitment to seeing that happen.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

In terms of scrutiny of a default fund, firstly, as I have made the point, the commission does not have the data that would enable it to do that yet. I hope it is publicly available soon. Should there be criteria? I do not want to say what the criteria should be, here and now. I accept that there should be criteria. There should be criteria to ensure that we have oversight of the default fund arrangements in every sector. But we do not have those criteria. I acknowledge that we have a less-than-perfect process at the moment but if we accept that there needs to be some change and improvement, we cannot, here and now, fix the problem. That is my frustration, Senator Fielding. It is my frustration with a lot of issues in superannuation. The lost accounts of $6.3 million, the conflicts of interest around commission based selling: these are considerable concerns. That is why I have said to the various sectors, ‘We are going to look at these issues. We’re not going to ignore any issue of contention.’

I cannot indicate to you whether the tender process is good or bad. You are right: the parliament can change the law. I suspect that we are going to end up with me, as minister, having gone through a process, coming back at some point in time with these issues of controversy in superannuation and saying, ‘Look, the system does need improving right across the board in a whole range of areas.’ That is the way it should be done, in my view. I am interested in your idea. It is what is in the best interests of the member—it is competition that works in the interest of the member that is critically important. I note your careful caveat about competition. Competition in long-term compulsory superannuation funds is not necessarily economically rational, but I will not go there.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

There is a lot of money in default funds and I think we need to make sure that we are getting the best result for each member in the default fund. I am wondering whether the government could give me some assurances that the Senate Standing Committee on Economics would look at the issue of requiring the Australian Industrial Relations Commission to hold a public tender for each specific award, and the advantages and disadvantages of that. I really have considered this and I think that is a good way forward. Could the government give me some assurance so we can move on from this discussion?

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I will give you this assurance: we will have a robust, comprehensive examination of every issue in superannuation, including this one—every issue that has been raised. I will give you a public assurance we will have that. I can say that I am interested in your concept—

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

It is a new concept, and a genuine concept.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

I accept that, but I cannot give a commitment beyond that at this time. I am interested in examining, as I have indicated, a whole range of other issues where there are significant matters of dispute in our system. I think we need to look at them in totality as part of the way the superannuation system is operating because I think we could do better.

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

I was very interested in Senator Fielding’s contribution that somehow there was a link between interest in superannuation and hair loss. So I do inquire as to why Minister Garrett is not the minister for superannuation, but it also explains Senator Xenophon’s lack of interest in my amendment! Can I quickly sum up: I accept where the numbers in the chamber lie, so the amendment will not get up, unfortunately. We will not be seeking to divide on this but we do want to put a few stakes in the ground and also indicate our position.

I also indicate that if there were a likelihood of this amendment being successful I would have been seeking to move some subsequent amendments that came to my attention, but that will not be necessary and I will not bore the Senate with the detail of that. I will respond to the minister. Yes, big business is not necessarily supportive of our amendment. On this side of the chamber we always see ourselves, firstly, as the champions of small business. The sorts of agreements that big business and big unions make in order to submit a particular fund to the Industrial Relations Commission have none of the transparency that Senator Sherry is arguing for in relation to the situation where an employer chooses the default fund.

We know that in the old industrial relations club they tend to get together and make deals for themselves. They will nominate who from the trade union movement and who from big industry will sit on the boards of these superannuation companies. They will stitch it up between themselves and it will all become a very cosy arrangement. So, just because big business is not on our side does not move us from our position in any way, shape or form.

We are concerned that the system creates mandated monopolies or oligopolies and does not promote active competition, which means higher fees and comparatively reduced services. I also indicate that nearly all employers would have employees who would be covered by more than one award. As a result, a multiplicity of payments will be required in this system, in any event. For a lot of small businesses if there is agreement with the employee, simply having the one fund would make some sense. The minister, I understand, has said that he has had an aspirational goal of average fees being of one per cent.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Less than one.

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

Less than one per cent. For firms with approximately 150 employees, tenders for default superannuation have delivered total fees of between 0.84 and 0.96 per cent. So that is exactly in that aspirational category that the minister has been talking about, yet he does not seem to want to move in that direction. For firms with over 1,000 employees, tenders have delivered fees of between 0.58 and 0.83 per cent—yet again in that aspirational category.

From what I can gather, no rationale has been provided as to why particular funds are or are not appropriate as default funds in a given industry. The Industrial Relations Commission say, ‘Hands off; we are not going to make a determination as to why a particular fund might be good, bad or indifferent.’ Basically they would rely on the submission and the agreement, as I said before, of the big employer and employee organisations—a sweetheart deal would be done and then it would just get rubber-stamped by the industrial commission. They admit they do not undertake an analysis.

When you have a look at that, you find that, in the retail industry sector, the REST scheme is the monopoly scheme—it is the only scheme. Australian Bureau of Statistics figures indicate that in the minister’s and my home state of Tasmania 33,500 Tasmanians, or 16 per cent of the Tasmanian workforce, are employed in the retail trade. A lot of businesses at the moment would be putting their super money into a Tasmanian based—

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Tasplan.

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

Yes. And under the modernised award the default fund is now going to be REST. That is going to have an impact on smaller schemes. Tasplan is, unfortunately, one of those schemes where business and unions get together that I was talking about before. Having only one monopoly supplier is going to have an impact on a lot of other smaller super funds.

I also understand that the default funds for the hospitality industry are HOSTPLUS and Queensland and Western Australian based funds. The ABS figures show that 11,800 Tasmanians, or 4.5 per cent of the Tasmanian workforce, are employed in the accommodation, cafe and restaurant industry. That is going to have a further impact in relation to Tasmanian based schemes. Can I also suggest that many employers have established rigorous tendering processes to choose the most appropriate default funds for their employees—those that have the best fees and performance outcomes for their employees.

I will not take the matter any further other than to say that this is unfortunately an indication that we are once again moving into the area of big business and big unions making deals, stitching things up for their own benefit with no real transparency, which the Industrial Relations Commission will just rubber stamp. It will be to the detriment of small business, of workers and of smaller funds. Having said that, I accept what the Senate is about to do and indicate that we will simply vote no on the voices.

Rachel Siewert (WA, Australian Greens) Share this | Link to this | Hansard source

I do not want to prolong this debate any longer so I will simply say that the Greens will not be supporting the opposition amendments.

Nick Sherry (Tasmania, Australian Labor Party, Minister for Superannuation and Corporate Law) Share this | Link to this | Hansard source

Firstly, the IRC is public, it is transparent and people can put their case through the decision. Secondly, Senator Abetz quotes figures—fees of 0.5 to 0.8 per cent for firms with more than 1,000 employees—but what has been kept secret is what happens to that fee when an employee leaves that business. Unfortunately, I am sad to say, some funds are in the practice of doubling the fee, because they flick them over to the retail section of the trust.

Yes, competition is good. But, if this was a perfectly rational world where people were well-informed about super and made informed choices, why would we make it compulsory in the first place? People do not make informed choices—they do not save for retirement. To expect 10 million people to make rational decisions without some fundamental protections is, I think, a misunderstanding of human nature.

Senator Abetz states a concern about multiplicity of payments. Senator Abetz, employers are not concerned about the multiplicity of payments to different default funds; what they are concerned about is the multiplicity of payments they have to make to different funds as a consequence of choice of fund. Employees front up and say they want this fund or that fund—to the extent that that works, it is about 10 per cent of the workforce. That is the real concern of employers about your choice of fund regime. I am informed that Tasplan—which I am obviously familiar with; it is from my home state—is the default fund in the retail sector as of 12 September.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

I would like to sum up as well on this issue. I think the current arrangement has some flaws. I think that what is being proposed by the opposition also has some flaws. I genuinely believe the best way of solving this is for the Industrial Relations Commission to hold, every three or four years, public tenders specifically for each award that allow industry funds, corporate funds and any other hybrid funds to pitch for that business. That would make sure we were getting the best possible default fund for Australians in each particular award area. I still think that would be the best way and I will probably seek at some other stage to have the Senate Standing Committee on Economics look into that issue and report back to the Senate.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The question is that opposition amendment (18) be agreed to.

Question negatived.

The Temporary Chairman:

I am guided by the chamber with respect to the next amendment.

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

I am wondering whether the minister has been to cabinet and back yet, because I would like to move the opposition amendments on page 3 of the running sheet, being amendments (2) to (5) on sheet 5739 revised 2.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

What I was going to suggest is that we could either go back to the running sheet, back to the order in which we started, and do ‘right of entry’, or go to the second page and do ‘other safety net entitlements’. If we could do either one of those it would at least clear running sheet page 1 and then page 2. I was also going to ask, while people were here, whether we wanted to have a shorter dinner break.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Absolutely not.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

All right; I have lost that debate.

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

Can I make the request again that we deal with the issue of definition of ‘small business’. We have already dealt with some Greens amendments dealing with small business, not knowing what definition of ‘small business’ we were dealing with. I am still not sure as to why the minister has this reluctance to deal with this issue now. Can I say it would be a fairly quick debate—I would imagine each of us would be speaking for about five minutes as to why we had a preferred number—and we would get it out of the way. That is why, if I may, Mr Temporary Chairman, I will move opposition amendments (2) to (5) on sheet 5739 revised 2.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

Mr Temporary Chairman, this may assist the chamber. When I spoke to Senator Siewert briefly before she left the chamber, as she had a committee meeting to go to, she expressed a preference—and I hope I am putting this correctly—for the right-of-entry matters to be dealt with at this stage. I think she will be back as soon as she can. But I am in the hands of the chamber as to what the preferred course is. I am keen to deal with the small-business definitional matters as well. But in relation to Senator Siewert’s preferred wish that I am passing on, I do not know whether that would be helpful at all.

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

I indicate that with right of entry Senator Fielding, for example, has an amendment that it should not apply to small business. How can we deal with right of entry as to small business if we do not know what the legislation is going to say about what a small business is? That was the same difficulty we had with some Greens amendments. We voted them down anyway in respect of the size. But I really do think that this is a discrete area as to the size of  business, and we know what the Greens position is in relation to that—it is very much 15. So if I may, Mr Temporary Chairman, I will proceed and move the amendments.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Given the Greens are not here—and I think that is a pertinent point that has been made—and that Senator Siewert did indicate to the government that she would not be too long, I think on that basis we could go to ‘other safety net entitlements’ and go to government amendments (1) to (14) on sheet RE403 and deal with those. So I seek leave to move those.

David Bushby (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Mr Temporary Chairman, I rise on a point of order. I believe that Senator Abetz has actually moved these amendments. I think that the discussion that we are having at the moment is therefore a moot point.

The Temporary Chairman:

On that point of order, Senator Bushby, my understanding was that Senator Abetz said he would move those. But my understanding is that leave would need to be granted to move amendments (2) to (5) together.

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

Well, in that case I will move amendment (2).

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

But I have the call.

The Temporary Chairman:

Is this on the point of order, Minister?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

That is right. The point of order was with regard to me, so could we go back to that. I had indicated we were going to ‘other safety net entitlements’ and to amendments (1) to (14), which I would then seek leave on. If leave is not granted, I will deal with them singly. So it is a question of whether or not I will be granted leave. We need to deal with that.

The Temporary Chairman:

Minister, my ruling is that Senator Abetz had moved—

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

No, he was to seek leave.

The Temporary Chairman:

(2) to (5) but he had not sought leave and he is now seeking leave. On the point of order, you have indicated you wish to move your amendments. I am in the hands of the chamber. Senator Abetz has moved those amendments but he will need to seek leave to move them together, otherwise we need to progress.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Leave is not granted. So, if we were to turn to government amendments (1) to (14), I could seek leave or, if I did not have leave, I would deal with them in seriatim. Do I have leave?

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

No, you do not have leave.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Then I move government amendment (1) on sheet RE403:

(1)    Clause 12, page 19 (line 8), omit “means redundancy”, substitute “means redundancy or termination payment”.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

What page of the running sheet is it again and what item?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

It is page 2 and it is amendment (1) on sheet RE403.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Is this item 2 on sheet RE403?

The Temporary Chairman:

It is item 1.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

So (1) to (14)?

The Temporary Chairman:

Yes.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

It does say down the page that the government’s amendments ‘conflict with’ the Australian Greens ones. Obviously, Senator Siewert has gone out as she has to be somewhere else. I think we need to try to get a bit of order into this process here.

The Temporary Chairman:

Thank you, Senator Fielding. I note that the note does say government amendments (12) and (13) ‘conflict with’ Australian Greens amendments (21) and (24). The government has moved amendment (1) on page 2 of the running sheet.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

In relation to Forward with Fairness the government provided that modern awards could provide industry-specific detail on the National Employment Standards, which is the policy implementation plan of August 2007. Consistent with this promise the Minister for Employment and Workplace Relations signed an award modernisation request to the Australian Industrial Relations Commission on 28 March 2008 which enabled the commission to include an industry-specific redundancy scheme in a modern award.

Where the commission includes an industry-specific redundancy scheme in a modern award, the Fair Work Bill provides at clause 123(4) that the redundancy pay entitlements in the National Employment Standards do not apply. This is not about creating new schemes; rather, it is about ensuring that industry-specific redundancy schemes can continue where they are an established feature of an industry. Industry-specific redundancy schemes are a longstanding feature of some industries and provide important assistance to employees.

For example, in the building and construction industry, the Western Australian Construction Industry Redundancy Fund has been operating for 16 years. In Queensland, BERT has been operating since 1989. In the building and construction industry an employer makes a weekly contribution to a fund and, when an employee’s employment ends for any reason other than misconduct, the employee can draw on the fund and the payment is beneficially taxed as a termination payment. These schemes recognise the special nature of the building industry. Under the traditional definition of ‘redundancy’ an employee would not be considered redundant when a project ends; however, employees in these circumstances need to be able to receive payments until the next project commences, and these schemes allow for such payments. I am aware that the commission is considering submissions from stakeholders on the issue in relation to stage 2 exposure draft modern awards, particularly in respect of the building and construction industry, prior to making a final modern award on 3 April 2009.

Amendment (1) amends clause 12, which contains the definition of industry-specific redundancy schemes, to ensure that the full range of such schemes may be included in modern awards. However, the commission should have regard to the terms of the minister’s award modernisation request and to the existing award provisions, including those notional agreements preserving state awards when including an industry-specific redundancy scheme in a modern award. It is for the stakeholders to make submissions to the commission on the factors the commission may have regard to in determining whether to include an industry-specific scheme in a modern award. These factors when considered in total are whether the scheme is no less beneficial to employees in the industry than the redundancy provisions in the NES, and whether the scheme is an established feature of the relevant industry. This amendment gives effect to what clearly amounts to the policy intent of the government.

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

I must raise very seriously with the minister the objection of the opposition to his absolute pig-headedness in relation to dealing with the issue of the definition of ‘small business’. We could have had this debate and vote by now, and he has been in the chamber throughout the whole period.

Jacinta Collins (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

That is not true; he wasn’t.

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

All right; he could have been in the chamber throughout the whole period to discuss this issue. He said, ‘Possibly with right of entry the Greens might have an interest.’ That is right, but with small business the Greens have not moved an amendment. The only three parties that have are the opposition, Family First and Senator Xenophon—whereas the Greens have a specific interest in the amendments we are now dealing with and the minister is deliberately proceeding with them in the absence of the Greens.

What is motivating this behaviour? Why this dogmatic denial of the opposition’s request to simply deal with something which we could have dealt with by now which then would have allowed us to proceed in a logical manner through a lot of the other amendments that deal with the issue of small business? At this stage of the debate the Senate still has not determined its definition of small business. I would have thought it would have made sense for the orderly conduct of this debate to have done this. We could have done it by now. The minister is now deliberately moving into an area that the Greens have a keen interest in and the Greens cannot be here.

Now, I am not usually here to defend the Greens, but all parties have been very cooperative in getting these amendments through. There are over 50 pages worth of amendments from the government, and, when you add ours and everybody else’s, it needs cooperation. I think we have been very cooperative for the minister and the minister has not shown any cooperation in reciprocation. I just put that on the table and would be interested in an answer from the minister, because we could have dealt with this issue of ‘small business’ definition by now.

In relation to the specific amendment that is before us, I can indicate the opposition will oppose it, as it will oppose the raft of amendments that we will be dealing with in this section and in particular the next couple as they relate to the transport sector.

Question agreed to.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I move government amendment (2) on sheet RE403:

(2)    Page 137 (after line 3), after clause 140, insert:

140A Terms for long distance transport employees

                 A modern award may include terms relating to the conditions under which an employer may employ employees to undertake long distance transport work.

The government amendment will introduce a new clause 140A into the Fair Work Bill that will enable modern awards to include terms relating to the conditions under which an employer may employ employees to undertake long-distance transport work. This amendment is sought in order to permit the Australian Industrial Relations Commission to provide for the continued operation of certain provisions of the New South Wales Transport Industry Mutual Responsibility for Road Safety (State) Award, if after hearing from the parties it is minded to do so.

I place on the public record that we will amend the award modernisation request to make it clear that the Australian Industrial Relations Commission can include safety net terms where they exist—that is, in New South Wales—but not otherwise. I understand that it is not intended that this provision allow duplication of any other state safety net law to be included in modern awards. I place on the record that the minister’s award modernisation request will make this clear. The provisions currently contained in the New South Wales award cover the following matters: safe driving plans, transport operators who undertake long-distance work, single journey or series of journeys in one shift of more than 500 kilometres, and development of a safe driving plan that minimises fatigue and facilitates the safe conduct of the work task. All parties in the supply chain have a responsibility to adhere to the plan and monitor compliance.

In addition, all transport operators must develop and implement a written drug and alcohol policy that prevents occupational use and addresses the health and welfare of persons found to be using drugs. Also, all transport operators must ensure that all employees and contractors have been trained in occupational health and safety practices through the blue-card training program. This amendment reflects concerns that industry-specific health and safety measures that are currently in the longstanding New South Wales award may not be included in a modern award dealing with long-distance transport. To be clear, if this amendment is not passed, the important protections that exist for road transport drivers in New South Wales will cease to apply.

There have been numerous inquiries and reports that clearly demonstrate the need for specific protection for employees in the long-distance driving sector. For example, the comprehensive Quinlan report into the long-haul driving sector in New South Wales found that a strong link existed between drivers’ tight schedules and payment at delivery time, and bonuses or penalties and rates of chronic injury. In fact, over 23 per cent of drivers reported a chronic back injury and the incidence of dangerous driving practices such as excessive hours. The National Transport Commission reports similar disturbing figures, including that around 330 people are killed each year in crashes involving heavy vehicles and that around 16 per cent, or 52, of those killed are the drivers of heavy vehicles. In addition, crashes involving heavy vehicles are estimated to cost around $2 billion a year out of a total of $15 billion in costs of road crashes. According to the Australian Safety and Compensation Council, the transport industry has the largest number of compensated fatalities of any industry. The commission is also subject to the government’s award modernisation request, including the requirement that there be no increase in costs.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I have a question for the minister. This amendment will mirror the transport and driver regulations in New South Wales—is that correct?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The request will enable the commission to do that if it is so minded. It is an enabling provision.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

So it is an enabling amendment so that the industry can go down the same road, if I can put it that way, as New South Wales. The transport industry has tough fatigue management laws which were implemented nationally on 28 September 2008. The industry supports these laws. Why do you wish to change them again? Why is there this amendment to the Fair Work legislation? Why do you need to change those safety regulations again, Minister?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

As I am advised, the AIRC are able to consider whether or not they wish to keep those. It is ultimately a matter for the Australian Industrial Relations Commission to determine. It is worth going back to the concerns that this provision is intended to introduce a new layer of regulation. That is one of the areas in which some in the industry have expressed concerns. As I said, it is not intended that this provision will allow for duplication of any other state safety laws included in modern awards. That is why we placed on the record that the minister’s award modernisation request will make that clear. It is about enabling the provision. It also contains the New South Wales award to deal with those matters that I indicated earlier. Of course, it leaves open the question of whether the AIRC wish to deal with it in any way for other states.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

So it locks up the system we have in New South Wales and enables other jurisdictions to adopt that system. That is obviously what you are saying. Minister, are you familiar with the blue card and how that works in the New South Wales driver transport system?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

My knowledge about these things stretches far and wide, but I am not familiar with how the blue card operates in New South Wales. You used the term ‘locks up’. It will be confined to New South Wales operation. I can seek further information if you want it in relation to the blue-card system as it operates in New South Wales, unless you want to add your own knowledge for the chamber’s benefit.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Perhaps I will explain the blue card. In 2005 in New South Wales, the government introduced regulations to the transport industry where every truck driver who drove distances greater than 500 kilometres had to have a blue card. That applies to all truck drivers in New South Wales as well as interstate truck drivers who travel into New South Wales. The blue card was to show that you had gone through an OH&S course, you had an understanding of safety regulations et cetera. And it is amazing that Coles and Woolworths do not even recognise the blue card when the transport drivers pull up there. They have their own regulations, if I could call them that.

I will give you an example of the implications of the blue card. Inverell Freighters had about 11 truck drivers and it cost Kerry Brown, the proprietor, some $8,000 to carry out OH&S training to have his drivers qualify for the blue card. You might be interested that, when he went to buy the blue cards, they were printed by a company in Western Australia and, I think, cost about $55 each. You wonder why the blue card had to be printed in Western Australia. We do have printing machines in New South Wales and people quite capable of doing that, but, of course, the truth of it is that the blue card is printed by a company over there that has strong ties to the Transport Workers Union.

I have a quote here from NatRoad—this shows you the problem with this legislation. That company in Western Australia:

… requires employers in the road freight industry to pay for all employees to obtain safety awareness training, more commonly known as blue card.

Bluecard is a private business in Western Australia with ties to the Transport Workers Union. In fact, the owners of Bluecard have admitted that the Transport Workers Union receives a kickback from each card sold. It also gives those operating Bluecard a list of all truck drivers in New South Wales, whether in a union or not. These trucking companies are charged a compulsory levy that goes to this Bluecard company, which admits it gives kickbacks to the Transport Workers Union, which, no doubt, gives kickbacks to the Australian Labor Party.

I hope Senator Xenophon and Senator Fielding are listening to me here. We are looking at a situation where this legislation can force these companies into a situation where they have to buy these blue cards and carry out this expensive training, when we already have OH&S regulations in the states, and there is a compulsory charge for the blue card that provides funding to the Transport Workers Union. To me, that has a rotten smell about it. The truckies I have talked to in New South Wales are furious about this policy of the Carr-Iemma government. Now it has been brought into the Fair Work Bill. It is called the Fair Work Bill? This is unfair work. That is what it is about.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

You really want to start talking about unfair work, after what you did?

John Williams (NSW, National Party) Share this | Link to this | Hansard source

No, we are talking about the siphoning of compulsory moneys. I will take your interjection, Senator Marshall. This bill allows for a compulsory payment to a company in Western Australia. I ask the minister: are you going to endorse that sort of action or are you going to nullify it?

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

The critical issue in all of this—and I think we agree—is the safety of drivers. The matters that you raise are matters which may be relevant to the AIRC, which may want to hear about how driving protections should be dealt with and the particular details that might be involved. What we are talking about in this respect is that we have settled the industrial relations to the extent of allowing New South Wales to maintain an existing system which involves ensuring that it includes safe driving plans, a drug and alcohol policy, and occupational health and safety training. We are not about wiping that out as part of the Fair Work Bill. We are going to ensure that it is a matter contained to New South Wales. If it is a matter that should extend to other states, then it is a matter that the AIRC can deal with and those submissions that you make today might be entirely relevant to whether it should or should not be included.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I would like to continue and look at what this amendment to this legislation means. The Transport Workers Union will have the power to enter a workplace with 24 hours notice, even if the company involved is not union affiliated. We have talked about this throughout the whole debate on this legislation. Union delegates will be free to inspect driving records and order companies to provide documents as far back as six years. What sort of a headache for companies will that be? They will require road freight employers and contractors to publish employee and contractor remuneration in publicly available documents—so much for privacy. They will require compulsory union involvement in drug and alcohol training, irrespective of whether any union members are present in the employer’s workforce. Employees and employers no longer have a choice, and—this is quite strange—right of entry access will be provided to unions to enter and enforce the award and contract determination at any related place of business, including consignors of freight, with just 24 hours notice. Upon a successful prosecution the union can then apply and receive up to 50 per cent of the penalties imposed by the AIRC.

This is how it is in New South Wales, and you want to bring it in Australia wide. This seems to be a great funding network for the trade union movement. This is what this modern award system is about. At no point have the relevant industry associations been consulted on this provision, despite being active in the many industrial relations reforms introduced by the federal government. I say to you, Minister—from the Queensland Trucking Association and the ATA—that you have not consulted with them. Why didn’t the government consult with the appropriate transport representatives in the nation before it decided to slip this amendment into this bill?

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

Have they consulted with the TWU?

John Williams (NSW, National Party) Share this | Link to this | Hansard source

Oh, they would have consulted with the TWU for sure.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

There are a couple of wild assertions contained in there, some of which I think would be helpful if made to the AIRC, should the AIRC decide—and, of course, it is the AIRC that make the decision—whether it is extended to any other state. That is certainly not the amendment that is currently before us. One thing we do need to be clear about, though, is the terms about right of entry, which are at 152, if I can take you to that provision—and I am sure Senator Abetz may be able to assist in showing you that provision as well. It says:

A modern award must not include terms that require or authorise an official of an organisation to enter premises:

(a) to hold discussions with, or interview, an employee; or

(b) to inspect any work, process or object.

So the assertions that you make in relation to that provision would not and could not derogate from 152. So, although you might find it interesting to make them in this chamber, they are wild assertions. Clause 152, ‘Terms about right of entry’, clearly says a modern award must not include terms that require or authorise an official of an organisation to enter premises to hold discussions with or interview an employee or to inspect any work, process or object.

I have indicated what the position is. It is about ensuring that, when making the Fair Work Bill and pursuing the framework we have been talking about, we do not simply sweep aside the current protections in the state of New South Wales for drivers’ safety. Those protections are not insignificant. As I have indicated, they are about having safe driving plans and ensuring that occupational health and safety issues and drug and alcohol policy are being dealt with. If it is to extend further than New South Wales, then that is a matter for the Industrial Relations Commission—and not only if it is, but in what form it would do so: in which way it would extend and how it would extend. They are all matters for the Industrial Relations Commission to determine. It is not the case that through the Fair Work Bill it would simply be a matter of—as you indicated—spreading this around to all other states. That is plainly wrong. The Industrial Relations Commission would have to determine whether or not it would consider any other state, and it would go through such things as you have talked about, quite frankly—and I would encourage you to make those submissions to it if it was minded to look at that more broadly. Those are matters for the Industrial Relations Commission to decide, not the Fair Work Bill. What the bill seeks to do is ensure that those issues I have talked about are maintained in New South Wales—not to sweep away what currently exists for occupational health and safety, drug and alcohol policy and safe work plans. The alternative would be that by introducing the Fair Work Bill without this amendment we would be sweeping those away. That is not the intent nor the desire of this government. Those matters which you seem most concerned about, as to whether they are reflected in other states, I think are misplaced.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I did not get an answer from you, Minister, about why you did not consult with the transport industry, so obviously you do not want to answer that. I will conclude by saying that it is just another part of this modern award system that exists in our state and it is probably the reason why the Electoral Commission are now going to remove another federal seat from New South Wales. Prior to the 2007 election we had 50 seats and Queensland had 28. We went down to 49—we had the seat of Gwydir taken off us—and Queensland went up to 29. Now they are doing it again, because New South Wales will go down to 48 federal seats and Queensland will go up to 30. These regulations, the red tape and the absolute strangling of business is why people are moving out New South Wales at a rate of knots, yet somehow through this we could expand New South Wales red tape and bureaucratic bungling right around the nation!

I will just add one more thing, Minister. The drug and alcohol testing policy must permit consensual and non-consensual testing. It says employees and labour hire employees who voluntarily disclose professional drug use or a personal drug or alcohol use problem shall not be subject to disciplinary action but shall be provided with counselling, training and, if necessary, treatment and rehabilitation. This is the sort of rot that flourishes in New South Wales. As I said, from the blue card to the red tape to the financial gains to the union movement, no doubt flowing to the Labor Party, the transport industry has tough fatigue management laws, implemented nationally on 28 September 2008, as I said—and the industry is happy with those laws. You have no need to introduce any more laws in the transport industry here and burden our transport industry with red tape and extra costs—and then wonder why Australian exports cannot compete. It is just another burden, especially on country areas, where the transport industry is so vital. I will close by repeating the question: why did you not consult with industry representatives over this issue?

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

To continue that theme, I do not believe I saw a recommendation on this issue in the Senate committee report. I may have missed it. Given the contentious nature of this issue, I wonder whether it needs to be looked at a bit more, rather than going back and forth on it here. I understand there is a submission on it, but I do not believe the committee report made any recommendation in this area.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

Senator Ludwig interjecting—

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

A good indication that this clause was going to be inserted into the bill has been probably a little bit late, and I am trying to work out whether we should actually go through a process. There is a concern out there with these cards, and to be debating this point at the eleventh hour without any robust process going into it—I must admit I am a bit nervous about voting for an insertion that is very contentious when there was no recommendation in the report on this issue. It does not give me a lot of confidence in voting for this particular insertion in the bill, given its contentious nature. Given there have been numerous press articles about claims and counterclaims in this area, I must admit I am not getting a lot of confidence to vote for it.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I will deal with two matters. Firstly, in relation to Senator Williams, I have not been able to, in the time, get a definitive answer about who has been consulted. I do know from Senator Marshall that there may have been submissions on the issue more broadly, but I will not go there. What I can say—and you may hold me to this—is that before the minister’s award request is made the minister will consult with the industry. So I can provide that. Secondly, with respect to what this provision does, it limits it to New South Wales awards, and in making its award modernisation the AIRC will have hearings and will research the history of these provisions. I cannot second-guess all of the matters it will look at, but I am sure it will look at these particular issues that have been raised before finally coming to a determination.

What we are doing here is ensuring that we do not sweep away the entitlements that currently exist in state awards that provide for driver protection—that is the important part. Otherwise, what you are doing is subjectively removing these provisions from current awards so that they no longer operate. The government is proposing that these provisions remain but that they remain confined to New South Wales, as they currently operate. Whether or not you have a view about how they operate is another matter, but they are currently operating. People do have those provisions that I have indicated. Those protections exist. So we will have them confined to New South Wales. What we have said is that the Fair Work Bill does not extend them beyond New South Wales. There is no automatic extension.

Regarding the award modernisation process, it will be up to the Australian Industrial Relations Commission  to decide on a range of matters within that whole award modernisation process, but including this provision and how it will operate. All the relevant submissions that may go to how it operates, whether it is effective, whether it provides enough protection or whether there should be more, are a matter for the Australian Industrial Relations Commission to look at. What we are simply doing in respect of this provision is maintaining the status quo. I think that is a reasonably fair position to put forward: that safe driving plans, drug and alcohol policy, and occupational health and safety training as currently exist within state awards and as are currently operating within state awards will not be removed as a consequence of bringing forward the workforce bill.

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

In the few moments remaining I have to say it is very interesting to note that these provisions have been introduced into this bill without any consultation with the transport sector. These are last-minute changes to deliver huge powers to the Transport Workers Union. You bet your bottom dollar the transport industry has not been consulted but the Transport Workers Union has. Let the minister deny it—and he will not. The reason is that these issues have been rushed in at the last minute, with the government amending its own legislation, in a very important and large area of concern, without anybody having the opportunity to submit to the Senate committee that inquired into this legislation.

Why wasn’t this put in the original legislation? Was it simply an oversight or was it because the government and the Transport Workers Union did not want trucking company after trucking company, especially from New South Wales, putting submissions before it indicating the corruption of the blue card and all the kickbacks that Senator Williams has been able to expose this afternoon? Why wasn’t it submitted to the Senate committee for all this to be teased out publicly? ‘No, no, no, we don’t put it in the bill. We then rush it in with amendments and try to smother it in about 20 amendments in this raft, hoping that nobody will necessarily pick up on it.’ Take the tip: we in the coalition have picked up on it, and it fails all our fundamental tests as to how we look at this legislation.

I have asked a number of times in this debate: how will it impact on small business? Very, very adversely, as Senator Williams has outlined. And does it deliver excessive union power? Of course it does—and it delivers it by the bucket load or by the truck load, if I can use that analogy in these circumstances. This is excessive union power. After the suspension of the sitting I will be making a few more comments about the New South Wales arrangements that have been driving the trucking industry.

Progress reported.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I move:

That the committee have leave to sit again at a later hour of the day.

Question agreed to.