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

The committee is considering government amendment (2) on sheet RE403.

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

I was talking to this before the break. This is about inserting terms for long-distance transport workers. I was saying that I could not see a recommendation on this issue in the Senate Standing Committee on Education, Employment and Workplace Relations report on the Fair Work Bill 2008 provisions. Obviously this is a fairly contentious issue and there has been a fair bit of press about the blue-card system in New South Wales. By the same token, you want to make sure that there is safety and security on our roads as far as long-distance transport goes. Considering it is such a contentious issue, I strongly suggest to the committee that we send to a committee a reference—which I foreshadow—for amendment (2) to be looked at and well considered before we go about inserting it at the eleventh hour tonight. I think there are two views that need to be put forward strongly. We have heard the cases from the government and the opposition. We could spend a lot of time here continuing that debate, but I think the best way of resolving this is to send this particular amendment to a committee to be looked at and to have them report back to the Senate.

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

There are still some issues at large in relation to this amendment. The first one, of course, is why the transport industry was not consulted but the Transport Workers Union was. The other issue is why this was not part of the original framework. The reason it was not part of the original framework, I suggest to the minister, is that under award modernisation we were going to have a framework that covered all awards but with this amendment we are carving out certain elements peculiar to the transport industry to give a huge leg-up to the Transport Workers Union in the terms described by Senator Williams before the dinner adjournment.

In this, we understand that safety is going to become an issue in the award. Occupational health and safety should be, I submit, a separate regime and not part of the award system. Once you allow it in for the trucking sector, guess who will be next? Why not, once the principle has been established, the CFMEU and the construction sector or the MUA in stevedoring? This was all about award modernisation—getting it all on the same footing—to ensure that we had a simple system, but here we are, sneaking in not only a special deal for transport but also a new safety principle. It is vitally important, do not get me wrong, but that is dealt with under an occupational health and safety regime, not through industrial awards. As soon as we open that gate again, the Transport Workers Union will be used as the precedent and you will see Kevin Reynolds, the MUA and all the others coming in behind, saying, ‘The precedent’s been set; let’s go for it, boys.’

I very seriously put to the Senate that government amendment (2) needs to be opposed for those reasons. I also think the Senate is entitled to an undertaking from the government—and they cannot give this undertaking—that the New South Wales system will not be transported into the national system and all around the country. Senator Williams outlined some of the corruption—I will use the word—

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Why don’t you say it out there?

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

in relation to the blue card. And a former official of the Transport Workers Union—

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I’m not a former official; I used to run it.

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

There we go! He used to run it. Can I tell you—

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Go out there and repeat those words. Go on, you coward!

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

Senator Abetz has the call.

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

That will have to be withdrawn.

The Temporary Chairman:

Order! Senator Hutchins, I would ask you to withdraw. We will wait until Senator Hutchins returns to his chair.

Steve Hutchins (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I withdraw.

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

Thank you, Mr Temporary Chairman. The interesting thing is, I will use the word ‘corruption’ in relation to these practices. The reason I use the term ‘corruption’ is that the matters outlined by Senator Williams clearly amount to corruption. The minister has not sought to deny that this has, in fact, occurred. We all know that these kickbacks occur. Sure, there might be some legal definition in the Transport Workers Union lexicon that does not make it corruption, that it is just deals among mates. But amongst humble suburban lawyers like me and people that represent the bush so exceptionally well, as Senator Williams does, we know that by the word ‘corruption’.

Let me just go through some of the situations that occur in New South Wales. If this amendment is passed, we will potentially have the Mutual Responsibility for Road Safety (State) Award in all jurisdictions. The consequences of that are that the Transport Workers Union will have the power to enter a workplace even if the company is not affiliated with the union. Union delegates will be free to inspect driving records and to order companies to provide documents as far back as six years. The award forces employees to complete a safety awareness program to obtain this blue card, with the company responsible—surprisingly—for paying all the costs. It is not the driver or anybody else; it is the company that pays for the blue card. As Senator Williams outlined, the company that provides the blue card is affiliated with the union and, of course, the union is affiliated with the Australian Labor Party. Would the money trail be headed that way? Well, methinks so, but let us wait and see.

Employers will be forced to enrol their employees in the union in order to avoid the burden of union inspections in compliance with the award. People in the transport sector are telling us that the government is being told it risks making the road a more dangerous place if it imposes the New South Wales model nationwide. That is how serious this issue is. Keep aside the corruption aspect so well articulated by Senator Williams; you may or may not believe in that. But it is also an issue of road safety. Why do we say that? Because:

The Award specifically prohibits employers from taking disciplinary action in response to drug or alcohol abuse …

Under the Award, employers must invest in counselling, treatment or rehabilitation but cannot take disciplinary action.

Driver remuneration must also be publicly released under the guise of a ‘safe driving plan’—

which employers and people like us oppose on privacy grounds. Can somebody explain to me whether somebody sitting behind the wheel of a truck is somehow more roadworthy if he earns $X per hour or $X+2 per hour? I thought we had a safety net under which people could not be paid—there would be award minima. So why would we need this public disclosure of payments? Do you know why? So the union has more power to influence the running of these businesses. The Queensland Transport Association believes it will inflict even more red tape. It really is, as NatRoads said, an industrial instrument that is ‘a legal mechanism to feather the nest of the Transport Workers Union’.

I could go on at some length; I will not. We as a coalition are very serious in relation to this aspect of these amendments. Usually I ask my colleagues on the crossbenches for an indication as to how they may vote, but on this occasion we feel that strongly that we will be dividing the chamber irrespective of support from the crossbenchers. Having said that, I would appeal to my brothers, Senator Fielding and Senator Xenophon in particular, to considering voting with us.

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

I’m a lost cause!

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

As to my sister Senator Siewert, I have a funny feeling that, no matter what I said, I would not be able to convince her.

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

I am grateful for the contributions of Senator Williams and Senator Abetz in relation to this. As well as the matters raised by Senator Ludwig, I have had a discussion with the office of the Minister for Employment and Workplace Relations in relation to this, and I am grateful for their assistance, because this is something that, as I understand it, was not part of the committee process. That is something that does concern me, because this amendment was, as I understand it, not subject to the scrutiny of the committee process.

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

It wasn’t in the bill originally.

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

It wasn’t in the bill originally, as Senator Williams helpfully points out. Yesterday I was contacted by Mr Steve Shearer from the South Australian Road Transport Association. He is a person who I have dealt with over the years both in my time in state parliament and since I have been here in the Senate, and I have always found him to be a very straightforward person to deal with. He expressed concerns about this particular amendment. His argument has been mirrored in part by Senator Williams. He said that there were very tough fatigue-management laws implemented nationally on 28 September 2008 and that the industry fully supports these laws. As I understand it, there is a concern, as has been expressed by Senator Williams, about the way that the New South Wales award provisions apply.

My first question to the minister is: can the minister advise whether the Deputy Prime Minister will amend the award modernisation request to make it absolutely clear that the AIRC can include safety terms where they currently exist but not otherwise? In other words, can she make it absolutely clear that for all jurisdictions other than New South Wales this will not apply, given that there are already existing occupational health safety laws in other jurisdictions? Can the minister confirm on behalf of the government in explicit terms that it is not intended for this provision to allow duplicate safety regimes to be included in awards? I have some more questions after those, but I would be grateful if I could receive a response from the minister on those two matters in terms of some very explicit undertakings that what applies in New South Wales will not apply in any other jurisdiction. I have some subsequent questions that are dependent on the answers.

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

I will answer in part some of the wild allegations made by Senator Abetz. The straw-man reasoning that was being put forward was quite extraordinary. The circumstances are these: we as a government place on the public record that the minister will amend the award modernisation request to make clear that the Australian Industrial Relations Commission can include safety net terms where they exist—that is, in New South Wales—but not otherwise. That means that the Australian Industrial Relations Commission can include safety net terms in New South Wales and not otherwise. To go on from that, it is a matter for the AIRC what those safety net terms are.

Senator Abetz, or the opposition, says that I should know about a whole range of things and that they are corrupt—that is what Senator Abetz was articulating. I am a little bit more careful with my words. I would say that if you were going to make those allegations—which are allegations—you would need to at least have personal knowledge of the facts of the matter before making them. I do not. Even if I had such personal knowledge, they would still only be allegations. I would certainly not assert as a matter of fact that these things existed. In relation to the second part—the question of whether they will be duplicated in existing safety net regimes across various states—these provisions are confined to New South Wales.

The industry has expressed concern that this provision is intended to introduce a new layer of regulation. It is not intended that this provision allow duplication of any other state safety laws to be included in modern awards. I place on record that the minister’s award modernisation request will make this clear. That answers definitively the two matters that Senator Xenophon raised and it deals with what I would call the straw-man reasoning being put forward on the other side.

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

I am grateful to the minister for his answer. I am guessing that Senator Williams and Senator Abetz may have something to say about the answer in a moment. I want to get some absolute clarity on this. Does that mean that the minister’s request will mean that the current provisions that apply in New South Wales will not apply to other jurisdictions?

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

That will be the effect, yes.

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

It seems to me that the debate boils down to this, and I direct this also to Senator Williams and Senator Abetz: is it the case that, if this amendment fails, any provisions relating to safety that currently apply in New South Wales will no longer apply and, in the absence of occupational health and safety laws applying, there may well be some legal vacuum or hiatus? Is that what the government is saying? I would be grateful for any assistance from Senator Abetz or Senator Williams in relation to that, because I have to say that on the basis of what Senator Williams has said there are some issues of concern. I am not going to use the language that Senator Abetz used. In terms of what Senator Williams has raised, there are some concerns about the operation of those provisions in New South Wales and the impact on the New South Wales transport industry that may need—and I am putting this in fairly neutral terms—some tidying up sooner rather than later.

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

In response to the questions from Senator Xenophon, the correspondence that I have from the representatives of the transport industry says that this amendment allows a mirroring of the system which exists in New South Wales today. In New South Wales the Staysafe Committee is about to review the regulations in New South Wales because they say it is simply not working, it is a bundle of red tape and it has put extreme costs and pressures on the transport industry. That is why the Staysafe Committee will soon review these regulations.

Surely, no matter what the minister says today, he cannot guarantee that some other jurisdiction will not adopt similar policies. If this was to be wholly and solely in New South Wales, as it has been since 2005, why is it even in this chamber here now? New South Wales has had the regulations for almost four years and the minister is saying that this is to allow for some sort of concreting process for New South Wales laws. I do not think that is the case at all. The situation is that it is here now, it was not in the original Fair Work Bill and it has been slipped in by the government as an amendment, hence I will not support it in any way unless the minister gives an absolute, 100 per cent guarantee that this amendment in this bill will not allow this to proceed in any other state. But of course the minister cannot give that guarantee because any other state can bring in OH&S regulations whenever they want. That is the situation as I see it.

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

Clearly, the award modernisation process was not designed to wipe out occupational health and safety provisions existing in, in this instance, New South Wales, dealing with the range of matters that I discussed earlier this evening. It is not the intention of this government to destroy existing occupational health and safety provisions. It may be the opposition’s desire to do that. But having identified an issue it is incumbent upon this government to address that. We are addressing it in a narrow way. It is not saying that the award provision that exists in New South Wales will be mirrored; it is a matter for the Australian Industrial Relations Commission. What we are saying is that safety terms can be included.

As to what happens in other jurisdictions in relation to all of these things, I understand that you might want to put a fence around your industrial relations systems, hold on to Work Choices and hold on to today’s industrial relations provisions, but I cannot and would not guarantee to you what will happen tomorrow or the next day or the day after that if it means improvements to occupational health and safety across this country, particularly in industries such as the long-haul transport area. Why would I? And I would be surprised if the opposition were against improved occupational health and safety in long-haul transport. If you are not, then all this provision does is exactly that. If you have a problem with particular issues, if you think they are corrupt and you make the allegation that they are corrupt, there are plenty of places you can air that. You can air it in here at will or you can go outside, as I think you were invited to do. Neither of those options is what I am inviting you to do. If you think those things exist then take them up with the appropriate authorities to have them investigated. That is what I have always argued and that is the sensible course of action. If anybody would refute that then I question their motive.

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

I indicate to Senator Xenophon that in New South Wales the Occupational Health and Safety Act deals with long-distance fatigue—there is a long-distance fatigue regulation under the act. There are also the Roads and Traffic Authority fatigue guidelines and National Transport Commission fatigue regulations. So we have a legislated framework for long-distance fatigue and travel occupational health and safety. But we also have this bizarre blue card system on top of all of that. Does it make the roads safer? We submit that it does not. Does it add to bureaucracy and red tape, which impinge on the viability of small business? Yes, it does. Does the blue card also give extra powers—excessive powers—to the Transport Workers Union, which is another one of the tests I have been on about during this debate? We say, unequivocally, yes, it does.

Interestingly enough the minister has not really sought to defend why you need, in effect, a belt-and-braces situation in relation to long-distance transport. What he is saying is that the National Transport Commission regulations are not good enough, the Roads and Traffic Authority fatigue guidelines are not good enough and the Occupational Health and Safety Act long-distance fatigue regulations are not good enough, so we need the award. Every other state seems to have been able to deal with these issues without dealing with them in this—I will not use the word ‘corrupt’ on this occasion—peculiar manner. People can read into that what they like. Also, this New South Wales award will, as I understand it, expire in 2014. What happens then?

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

Senator Williams interjecting—

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

Chances are the blue card will be dispensed with because, as Senator Williams just quietly interjected, the Transport Workers Union will have enough money by then. Whether that is the case or not, the question is: what is going to happen with the road safety regulations after that?

I suggest that the legislated regulations under the various acts that I have already referred to are sufficient and that the blue card is simply a front for the funding purposes that I have outlined. If it were so vital you would think there would be a mechanism to ensure that the New South Wales award, which is peculiar in this regard, would continue beyond 2014. I say to the Senate that the New South Wales system is a disgrace and, if the Senate were to vote, by implication, that it is an okay system, I think it would be a very sorry day for the Senate.

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

My position is as follows. I am grateful to the minister for the very clear undertakings that have been given. However, I think that there are still some concerns that have been raised by Senators Williams and Abetz in relation to this. So out of an abundance of caution I will not support this amendment. But I can indicate that I am prepared to continue to discuss this with the government overnight, because I figure we are going to be back here tomorrow. I do not know whether Senator Ludwig is smiling or—

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

Grimacing.

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

grimacing.

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

We’ll be here on Sunday at this rate.

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

I have taken Senator Seiwert’s interjection about being here on Sunday; therefore I will sit down because I have already indicated my position.

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

Does the government intend to move these amendments together or are we going to separate out (2)? We have been confining our discussion to amendment (2). Are we going to go on to discuss the rest of the amendments on this sheet or do you want to deal with this one and then do the other ones?

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

Can I assist the Senate? The minister, before dinner, was very, very uncooperative in relation to a very, very sensible opposition request that we deal with the issue of what number of employees constitutes a small business, as a result of which we indicated that we would, in union terms, do a ‘go slow’ on the matter!

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

Senator Jacinta Collins interjecting—

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

No, go slow. As a result, we were dealing with each amendment in turn, rather than en bloc. The minister has now indicated that after this tranche we will go to the issue of small business. Therefore I can indicate to Senator Siewert that, yes, we do want a separate vote on government amendment (2) but after that we would be happy to deal with them en bloc.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

I have been advised that amendment (2) only is before the chair.

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

In that case I indicate the Greens’ support for amendment (2). I do want to speak to the rest of the items on this sheet but I will just say that we are supporting (2).

The Temporary Chairman:

The question is that government amendment (2) on sheet RE403 be 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 (3) on sheet RE403:

(3)    Page 142 (after line 8), after clause 145, insert:

145A Terms about consultation and representation

                 Without limiting paragraph 139(1)(j), a modern award must include a term that:

             (a)    requires an employer to whom the award applies to consult the employer’s employees to whom the award applies about major workplace changes that are likely to have a significant effect on the employees; and

             (b)    allows for the representation of those employees for the purposes of that consultation.

This amendment recognises the importance of consultation with employees in circumstances where an employer has decided to introduce major changes that are likely to have a significant effect on employees. It is longstanding industrial practice that awards provide for consultation in these circumstances. For example, in the important matter of redundancy, the 1984 redundancy test case recognised that consultation about major change is highly desirable and that representation in this process is appropriate. The arrangements worked well for over 20 years, until consultation clauses were rendered non-allowable by the Workplace Relations Act.

There are a couple of matters that it is important to note in this debate. Firstly, the provision allows Fair Work Australia to determine the most appropriate arrangements for consultation and representation. It is a matter for Fair Work Australia to make those decisions. Secondly, the proposed amendment requires awards to provide a process for consultation and requires representation as part of that process. It would not impinge on employers’ ability to manage their businesses and would not allow for arbitrated outcomes to be imposed on businesses. Those are two very important matters that we should recognise.

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

The opposition opposes this amendment as well. This amendment will change the situation in relation to modern awards. The opposition says that there is no requirement for this provision as the draft modern awards already contain such a provision. But, importantly, it removes the qualification in the modern awards system that no employer is required to disclose confidential information if such disclosure would be contrary to the employer’s interests. This allows for the representation of those for the purposes of that consultation. Matters in relation to, let us say, a publicly listed company could potentially be divulged prior to the stock market and shareholders being advised, and we do not think that is a good course of action. This is another one of these amendments that have been rushed in at the end and that were not properly aired at the Senate committee.

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

Yes, it was.

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

I said ‘properly’ aired, and—

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

Wasn’t it simple enough for you, Eric?

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

I do not think Senator Collins is sitting in her usual seat. Undoubtedly she has had an enjoyable sojourn out of the chamber and is now back to make a contribution, which is always interesting. We say that the first aspect of the amendment is unnecessary and we are concerned about the consequences, especially when it says that an award must include a term that ‘requires an employer to whom the award applies to consult the employer’s employees to whom the award applies about major workplace changes that are likely to have a significant effect on the employees’. It makes sense that those sorts of changes may also have a significant effect on the share price, and there we have the conflict. That is why we as an opposition are opposed to this clause.

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

The Greens strongly support this amendment. You can bet that if the opposition oppose it we will be supporting it. We believe it is an important amendment allowing an important and longstanding term in the modern awards, particularly important in the current economic circumstances in which many businesses will in fact be restructuring. But it is also important at all times when businesses make such significant decisions. So we will be strongly supporting government amendment (3).

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

The position that is now being put by the opposition about this clause is, frankly, quite extraordinary. If it meant what the opposition thought, then surely that was the main argument put by the employers in 1984, which was the redundancy test case. But, clearly, it did not persuade them to not deal with the redundancy test case, which recognised that consultation about major change is highly desirable and that representation in this process is appropriate. If there are laws which require things such as market sensitive information to be released at a particular time, then I have no doubt that the company or the corporation will abide by those. They may go to the employees at the same time, if the provision allows for it, or shortly thereafter, if the provision allows for it. It is common sense to allow it to really come to the fore, because to do otherwise would say that the employer would not be able to consult about major change because it could be market sensitive. I do not know what those circumstances may or may not be. I do know that it is important to consult. The corporation does have an overriding requirement to meet the relevant corporations legislation, and I have got no doubt they would not breach their Corporations Act requirements. But it does not mean that they should rule out, as a consequence, talking to their employees about the major change, especially where the major change is going to impact upon and have a significant effect on the employees. I think it is an unsurprising clause. I am sorry if the opposition have read more into it than is there.

It is about consultation. But then, when you look at the history of what the Liberals did in relation to these provisions about consultation, clearly what is at the heart of the Liberals is a born-to-rule mentality which says: we have a right to manage our business the way we want to manage it and we do not want to consult with anyone, even our employees, about our business. That seems to be what is at the very heart of the provisions. That seems to be why consultation was ripped from the Workplace Relations Act. It seems to be why the Liberals think consultation is such an anathema, especially when it comes to employees. It seems to underscore the view that they do not want to consult with employees at all, because, if that were the case that Senator Abetz was putting, then I would say to him: describe the circumstances where it is okay to consult—otherwise, is it that clear that you do not want consultation at all? What this clause does is allow for consultation to be included, and of course it is a term that must be included in an award so that it ‘requires an employer to whom the award applies to consult the employer’s employees to whom the award applies about major workplace changes’. I think it is unsurprising. I think what it means is reasonably plain, and it does allow for those employees to be represented. There is little more that I can add in respect of that other than to comment that it is not surprising to me that the Liberals on the other side are opposed to consultation.

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

I think this evening we have got the great juxtaposition in Australian politics. We on the coalition side actually believe that consultation means that you talk through the issues with people before you announce the decision. We have now heard from the minister that, for the Labor Party, consultation includes the possibility of making the decision, going to the share market and announcing it, and then talking to the workers. Silly me! I thought consultation actually meant talking to people about the issues before you made the final decision! What the minister has now put up in lights—I think, very effectively—is the different approaches of the coalition and the Labor Party in relation to the issue of consultation. If it is as the minister asserts, and I see no legal precedent for this, he has basically admitted that the corporations power may require the employer not to consult beforehand with the employees—that point was basically accepted—and he said common sense would need to prevail. I happen to agree with that. But if there is a conflict, as there will be, which one is to prevail? I was foolish enough to think consultation meant you actually had to talk through the issues with people before you made the decision. If consultation does not mean that, that is reassuring, but I think that is the Labor interpretation of the term, as opposed to the legal interpretation of the term. It is, in fact, the legal interpretation of the term that we have to concentrate on and deal with this evening. Given what the minister has said, I think it has, in fact, strengthened very substantially the case for the opposition to oppose amendment (3).

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

I do not know if it is helpful for Senator Ludwig to talk about the opposition having a ‘born-to-rule’ mentality, although right now going through this debate I feel it is a case of ‘born to ruin’ on my part. I read this amendment relatively narrowly. What it requires is for an employer to have a discussion and to consult with workers about changes that are being planned, not prior to the changes being planned, but to inform them: ‘These are the changes. We are letting you know we are going to discuss them and consult with you about them.’ I read the amendment relatively narrowly, closer to the government’s position, and I indicate my support for this amendment.

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

I have listened carefully and I have had some notes from both sides on this issue. There are two ways of reading this. I am all for consultation but, as we know, sometimes minds are made up even before the consultation is done. I think employers know how to run their business and, if we start assuming employers do not do the right thing, you can see a need for creating a lot more of these sorts of amendments. If you also came from the perspective that workers do not do the right thing, you would end up with a heck of a lot more clauses. I have weighed it up and I do not think that the insertion of this amendment is that necessary. I am persuaded by the opposition in this regard so I will not be supporting this amendment.

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

If I may circumvent this: I know I am now doing this on my feet—and I thank Senator Fielding for his indication of support, which would have meant that we could have bowled over this amendment—nevertheless, I have been taking a very reasonable and measured approach, as is my want. I had to say it, Minister, as nobody else would! Could we add a subclause that says, ‘No employer is required to disclose confidential information, the disclosure of which would be contrary to the employer’s other legal obligations, in particular under the Corporations Act’? That is our concern. If that would be acceptable to the government, then we could have a way through this.

Minister, I have a hunch that this might come back to the Senate in any event. If that were to be the case then we could knock out this amendment but indicate the opposition’s willingness to revisit it on its return for the purposes of putting in an amendment which, of course, allows for consultation. You would expect a good employer to do that in any event, but we do not want the consultation mandated in the legislation in circumstances where the good employer might say, ‘Well, under this act I have to, but under another one, if it gets out, I would be in breach of the Corporations Act.’ So I give that as an option to the minister as to which way he would prefer to handle it.

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

In this instance I used the Corporations Law because it would prevail over an award. Therefore, if there were a duty to abide by the corporations act, the corporation will do that in respect of the matter. If I am wrong about that then, obviously, we will get an opportunity to have a look at this overnight. That would be my understanding of how it would work. It is a source and stream argument. An award is not equal to, in that sense, a corporations act. You would expect the corporations act to be the relevant piece of legislation that the Corporations Law would have to apply to.

It looks like I do not have Senator Fielding on my side. On that basis we will have a division and I think the government will probably lose this amendment, but we will have overnight to consider how we do what I would call a belt-and-braces effect, to see if we can save the important part of consultation. I am sure these were probably arguments that were run back in 1984, which is a bit Orwellian, I have to say. The position would have been made clear. It read then and still reads today that, when an employer has made a definite decision to introduce major changes to production, programs, organisation structure or technology that are likely to have a significant effect on employees, the employer shall notify the employees who may be affected by the proposed change in their union or unions. It goes on to explain what ‘significant effects’ are. It contemplates notification in this instance about a TCR provision. It is expressed in similar terms, although we have used the term ‘employee’s representatives’.

We note the provisions are also mandatory in certified agreements, but they have not been picked up. We have said that they are, in effect, mandatory. We have said in respect of our position that a modern award must include the term ‘requires’. It is the same in the sense that TCR provisions are also mandatory, and so is this. It is about the heart of the issue, which is consultation. It is about ensuring employers consult with employees in these circumstances. I think it boils down to nothing more nor less than that.

You can argue about what might be of concern to some employers, but my experience tells me, after many, many years, that employers will always throw up some red herring, some reason why they cannot consult, because ultimately they do not want to consult about major change which may impact or significantly affect their employees. It would have been argued back in 1984. It was removed from the Workplace Relations Act by the Liberals and now we are simply seeking to ensure that we go back to a circumstance where employees do get to be consulted about these provisions. As I have said—and I will not keep the debate going any longer—we will test it and then we might have a look at it overnight.

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

Without delaying any further, any advice that the minister gets and cares to share with me tomorrow would be helpful in that regard. The clause that the minister read out, interestingly, as I heard it, had the words ‘has made’. When it says ‘employer has made’, that suggests that the change has already been made, whereas in this we are talking about changes that are ‘likely to have a significant effect’, and that suggests the future. That is the bind that I foresee employers being in. Requiring them to consult after a decision has been made as to how it will all work out makes good sense—I agree with that—but requiring them to consult beforehand, in circumstances where that could impact on the share price, would mean they would be between two Commonwealth laws.

In relation to the impact of an award, if it were simply an award that said it, that would be fine. But the problem is that this legislation is also Commonwealth legislation and is mandatory inasmuch as it says—without limiting a certain paragraph—‘a modern award must include’, and then there is the provision. So that award will be clothed with the authority of a Commonwealth piece of legislation which actually mandates it. Therefore, I am not sure that the argument of the minister would be upheld. Having said that, if the government has good advice for us tomorrow, I am more than open to reconsider my position. That is all I have to say. I suggest we move to the vote.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that government amendment (3) on sheet RE403 be agreed to.

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

by leave—I move government amendments (4) to (14) on sheet RE403:

(4)    Clause 154, page 144 (line 27), omit paragraph (1)(b), substitute:

             (b)    are expressed to operate in one or more, but not every, State and Territory.

(5)    Clause 287, page 257 (line 21) to page 258 (line 4), omit the clause, substitute:

287 When national minimum wage orders come into operation etc.

Orders come into operation on 1 July

        (1)    A national minimum wage order that is made in an annual wage review comes into operation on 1 July in the next financial year (the year of operation).

Setting of different wages or loadings only permitted in exceptional circumstances

        (2)    The national minimum wage or the casual loading for award/agreement free employees set by the order must be the same for all employees, unless:

             (a)    FWA is satisfied that there are exceptional circumstances justifying setting different wages or loadings; and

             (b)    the setting of different wages or loadings is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

        (3)    A special national minimum wage set by the order for a specified class of employees must be the same for all employees in that class, unless:

             (a)    FWA is satisfied that there are exceptional circumstances justifying setting different wages; and

             (b)    the setting of different wages is limited just to the extent necessary because of the particular situation to which the exceptional circumstances relate.

Adjustments taking effect during year of operation only permitted in exceptional circumstances

        (4)    The order may provide that an adjustment of the national minimum wage, the casual loading for award/agreement free employees, or a special national minimum wage, set by the order takes effect (whether for some or all employees to whom that wage or loading applies) on a specified day in the year of operation that is later than 1 July, but only if:

             (a)    FWA is satisfied that there are exceptional circumstances justifying the adjustment taking effect on that day; and

.             (b)    the adjustment is limited just to the particular situation to which the exceptional circumstances relate.

When orders take effect

        (5)    The order takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after 1 July in the year of operation. However, an adjustment referred to in subsection (4) takes effect in relation to a particular employee from the start of the employee’s first full pay period that starts on or after the day specified as referred to in that subsection.

(6)    Clause 289, page 258 (line 27) to page 259 (line 2), omit subclauses (2) and (3), substitute:

        (2)    FWA must publish all submissions made to FWA for consideration in the review.

        (3)    However, if a submission made by a person or body includes information that is claimed by the person or body to be confidential or commercially sensitive, and FWA is satisfied that the information is confidential or commercially sensitive, FWA:

             (a)    may decide not to publish the information; and

             (b)    may instead publish:

                   (i)    a summary of the information which contains sufficient detail to allow a reasonable understanding of the substance of the information (without disclosing anything that is confidential or commercially sensitive); or

                  (ii)    if FWA considers that it is not practicable to prepare a summary that would comply with subparagraph (i)—a statement that confidential or commercially sensitive information in the submission has not been published.

        (4)    A reference in this Act (other than in this section) to a submission under this section includes a reference to a summary or statement referred to in paragraph (3)(b).

        (5)    FWA must ensure that all persons and bodies have a reasonable opportunity to make comments to FWA, for consideration in the review, on the material published under subsections (2) and (3).

        (6)    The publishing of material under subsections (2) and (3) may be on FWA’s website or by any other means that FWA considers appropriate.

(7)    Clause 306, page 266 (lines 29 and 30), omit all the words from and including “to the extent” to and including “equal remuneration order”, substitute “in relation to an employee to the extent that it is less beneficial to the employee than a term of an equal remuneration order that applies to the employee”.

(8)    Clause 324, page 282 (line 2), before “An”, insert “(1)”.

(9)    Clause 324, page 282 (after line 22), at the end of the clause, add:

        (2)    An authorisation for the purposes of paragraph (1)(a):

             (a)    must specify the amount of the deduction; and

             (b)    may be withdrawn in writing by the employee at any time.

        (3)    Any variation in the amount of the deduction must be authorised in writing by the employee.

(10)  Clause 326, page 283 (line 6), omit “the”, substitute “an”.

(11)  Clause 326, page 283 (lines 10 to 12), omit all the words from and including “the deduction” to the end of subclause (1), substitute:

either of the following apply:

             (c)    the deduction or payment is:

                   (i)    directly or indirectly for the benefit of the employer, or a party related to the employer; and

                  (ii)    unreasonable in the circumstances;

             (d)    if the employee is under 18—the deduction or payment is not agreed to in writing by a parent or guardian of the employee.

(12)  Clause 333, page 289 (line 9), omit “The”, substitute “(1) Subject to this section, the”.

(13)  Clause 333, page 289 (after line 10), at the end of the clause, add:

        (2)    A regulation made for the purposes of subsection (1) has no effect to the extent that it would have the effect of reducing the amount of the high income threshold.

        (3)    If:

             (a)    in prescribing a manner in which the high income threshold is worked out, regulations made for the purposes of subsection (1) specify a particular matter or state of affairs; and

             (b)    as a result of a change in the matter or state of affairs, the amount of the high income threshold worked out in that manner would, but for this subsection, be less than it was on the last occasion on which this subsection did not apply;

the high income threshold is the amount that it would be if the change had not occurred.

(14)  Page 289 (after line 10), at the end of Division 3, add:

333A Prospective employees

                 If:

             (a)    an employer, or a person who may become an employer, gives to another person an undertaking that would have been a guarantee of annual earnings if the other person had been the employer’s or person’s employee; and

             (b)    the other person subsequently becomes the employer’s or person’s employee; and

             (c)    the undertaking relates to the work that the other person performs for the employer or person;

this Division applies in relation to the undertaking, after the other person becomes the employer’s or person’s employee, as if the other person had been the employer’s or person’s employee at the time the undertaking was given.

The government proposes a series of amendments in relation to the provisions dealing with modern awards and wages. The amendments provide limited scope for Fair Work Australia to delay wage increases through national minimum wage orders, similar to that which already exists in the bill for award wage rates; provide additional protection for employees in relation to deduction from wages; and ensure that the amount of the high-income threshold cannot be reduced through regulation. The high-income threshold determines when an award ceases to apply to an employee with guaranteed annual earnings and whether an award- or agreement-free employee has access to an unfair dismissal remedy. It also enables an employer and prospective employee to agree to a guarantee of annual earnings before the prospective employee commences employment. There are other minor technical amendments that flow as a consequence of that.

The Greens propose to remove the high-income threshold, which is the conflict between these amendments and their items (21) and (24) on sheet 5729. If it helps the debate, I indicate in advance that we will not be supporting that position.

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

Without delaying the Senate too long, this tranche of amendments has items in it that we think are good but also items that we think are bad. On balance, we will be voting against them—I indicate that, in case there is support from the crossbenches for that on the voices. We are concerned that these further amendments will permit awards to retain state based differences based on certain peculiar circumstances. This, of course, is a substantial wind-back of the position that awards should provide a national uniform safety net for an industry without state based differences. This will, we believe, permit union friendly deals in a particular state to be retained regardless of whether they are an appropriate safety net. Of course, we have had that discussion already in relation to item (2). I will leave my comments there.

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

I have a question of the minister, through you, Madam Temporary Chairman, on item (5). Regarding the timing of national wage orders and allowing the timing to be varied in exceptional circumstances, would the minister please give an outline of the types of circumstances this amendment is directed to.

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

It could happen. I do not want to be confined to particular examples, but it could happen to a particular section of an industry which was suffering severe economic conditions at the time, depending on the circumstances. These are matters that would have to be put before the AIRC as a case, and you would have to persuade the AIRC—or, following on from that, Fair Work Australia—to accept those arguments. My recollection is, unless the advisers can tell me otherwise, that many of these types of arguments have been run in commissions over many, many years. Significant drought might be another example—a lengthy, sustained drought where exceptional circumstances have applied and the industry is suffering significant hardship as a consequence. You could imagine those types of arguments would be examples of where the commission may take that into account.

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

I thank the minister for his answer. I just want to indicate that the Greens will be supporting these amendments, even though we are not very happy, as you can tell from our amendment, which we will be discussing later on, in terms of the high-income threshold. But we will be supporting (12) and (13), particularly because we think that the provision, given that it is going to exist, is an important protection against future governments actually undermining the award system by lowering the threshold. As I said, we think a preferable amendment is the one that we will be moving, even though the government have already signalled that they will not be supporting it. As we are unlikely to persuade the chamber about our approach, we think it is good to put these protections around it, so we will be supporting these amendments.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that government amendments (4) to (14) on sheet RE403 be agreed to.

Question agreed to.

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

by leave—I move opposition amendments (2) to (5) on sheet 5739 revised:

(2)    Clause 23, page 41 (line 31), omit “15 employees”, substitute “25 employees”.

(3)   Clause 23, page 42 (line 5), at the end of subclause (2), add:

   ; and (c)    the number is to be calculated in terms of full-time equivalent positions, not as an individual head count of employees; and

             (d)    the regulations must prescribe a method for the calculation of full-time equivalent positions for the purposes of this section.

(4)   Clause 121, page 122 (line 5), omit “Section”, substitute “(1)  Section”.

(5)   Clause 121, page 122 (after line 11), at the end of the clause, add:

        (2)    Subsection 23(1) has effect in relation to this section as if it were modified by omitting “25 employees” and substituting “15 employees”.

        (3)    Subsection 23(2) has effect in relation to this section as if it were modified by omitting paragraphs (c) and (d).

We are now coming to that part of the debate as to what is the appropriate size of a small business. I know that my colleague Senator Boyce wants to make a contribution and will be indicating to the Senate some excellent research she has done on what others consider to be the appropriate number in relation to a small business. We as an opposition say that the number should be 25. We note that Senators Fielding and Xenophon are of the view that it ought be 20 and the government is at this stage, I think along with the Greens, saying that it ought be 15.

Is there any magic around any particular figure? No, there is not. The question really is, from our point of view: what is the figure that is most conducive to seeing employment growth in the small-business sector? We have been concerned to ensure that some of the obstacles that have been in the way of small business employing people be removed. Whilst I will not traverse that which has now been rejected and thrown out, one of the motivations in the past for the threshold of 100 by the then government was that it would see a huge growth in employment. I still remember when the change was made, when unemployment was where it is today, that we said we dared to hope to have unemployment with a figure of four in front of it. When we left office we had failed: the unemployment level did not have a four in front of it. In fact, it had a three in front of it: 3.9 per cent. It was beyond that which we had dared to dream about—and, of course, each part percentage point that unemployment came down meant thousands more of our fellow Australians had gainful employment.

When you talk to small business, there is no doubt about the unfair dismissal laws as they were coupled with the prospect of go-away money. I think Mr Beazley and Mr Rudd even admitted, during the election campaign and in the lead-up to it, that go-away money was a problem. A small business would be told, ‘Unless you pay us $2,000 or $3,000 we will be requiring you to front up, with a union representing us’—as a result, no legal fees—but the small business, of course, would have to engage a lawyer. I remember circumstances such as this, even when a small business won, when as a lawyer I had to say to people, ‘We can win this case, but you’ll have to pay me possibly $5,000 to $10,000, so a commercial decision is to offer them three or four and do a deed of release’—and each time it worked a treat. It was unfair and unreasonable, and within the small business community it led to people saying, ‘We will not employ people.’

Can I say that, even with the figure of 15, and how the government is now approaching it, we have seen a seismic shift in the thinking of the Labor Party in relation to unfair dismissal laws and the regime—and we in the coalition welcome that. We say the seismic change to 15 is not quite far enough, but we do accept the verdict of the Australian people that they viewed the figure of 100 as excessive. I know Senator Boyce will give us some interesting information about what others think the appropriate threshold is. I recall previously in this debate reminding people that the ILO, the International Labour Organisation, considers a small business to be one that employs 50 people or less. So the coalition going for a threshold of 25 is very, very modest and moderate in comparison to that which the International Labor Organisation itself recognises. But we do accept the verdict of the Australian people. While the figure of 100 had, I believe, a great impact and was very beneficial in providing employment opportunities, a lot of people said it came at a cost that was unacceptable to the Australian people in relation to uncertainty. We accept that. That is why we think in the wash-up a figure of 25 is reasonable.

To conclude on this: undoubtedly the government will say to us that they have a mandate. They went to the election in relation to Forward with Fairness which mentioned the number 15. I say to the government: I think they would have had us snookered if they had come into this place with legislation that only replicated Forward with Fairness. But of course they have not. Labor made very strong promises in relation to the right of entry, when Ms Gillard was even willing to do something with her mother—I am not quite sure what it was, but she was willing to offer her mother if she were to break this solemn promise to the Australian people in relation to right of entry. We now know in the legislation before us that she has in fact broken that promise, albeit the latest amendments are getting back towards that promise.

Unfortunately, the government can now no longer claim that it has a mandate, because if it were to assert the mandate argument it would have to present legislation which was identical to Forward with Fairness—and I think all of us around this chamber know that that is not the case. Therefore, I think they have disallowed themselves from using the mandate argument. But, as I say, they may well have been able to snooker us on that if their legislation had only been Forward with Fairness. What they have done is said, ‘We do have to adjust it a bit here and there to accommodate certain other considerations.’ We say, ‘Well, if you are going to engage in that game, it is open to everybody to engage in that game; we therefore suggest the figure of 25.’

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

As Senator Abetz has ably pointed out, we have moved our amendments because we think they improve the provisions of this Fair Work Bill. I think we need to look at why there is an exemption from the unfair dismissal provisions for small business. It is about whether small business has the resources and the capacity to fulfil the legal, the technical and the regulatory requirements that, as Senator Abetz pointed out, can cost companies over and over again. I would like to go through what some other countries do in terms of what constitutes a small business. As Senator Abetz pointed out, by international standards our definition of a ‘small business’ is very low. The ABS defines a small business as having 20 or fewer workers and a medium businesses as having 20 to 199. But the majority of world regulatory agencies define a small business as having up to 50 employees. The OECD, the ILO and the World Bank all define a small business as fewer than 50 employees and, if you do the translation on the turnover, it is about A$20 million in turnover. Those agencies all say 50 employees and a turnover of under $20 million. That is vastly different from what we allege will give business the sorts of resources to cope with the regulatory framework of unfair dismissal provisions.

A Canadian business is actually considered small if it employs under 100 workers, and that might give you an idea of where some of the earlier legislation came from. As I said, the OECD says that a small firm is fewer than 50 employees and micro-enterprises up to 10. The ILO—which, as I have said here before, can hardly be seen as an economically conservative organisation—says that small firms are considered to be those with fewer than 50 employees, and it puts an upper limit of 200 on a medium sized business. The World Bank goes for a turnover of about A$15½ million and fewer than 50 employees. We could go on and on.

In the US they have gone for a somewhat more complicated system which recognises that some businesses may have a lot of employees but not a lot of capacity. A highly labour intensive business such as a factory, a milk bar or a sandwich shop might employ a lot more people than, for instance, an IT organisation which has much higher turnover, much fewer staff. So for a small business in the US they work on the sort of business. For most manufacturing and mining industries, up to 500 employees and a turnover of about A$11 million is considered a small business. It goes on: for wholesale traders, they work on a definition of under 100 employees and with annual receipts below A$52 million. They have tailored the cloth to suit the type of business—certainly not something we have done here.

Industry Canada, as I pointed out, says that a small business is any business with fewer than 100 employees and a medium business works on 100 to 500 employees—vastly different from the figures that we have here. We have worked on the basis that we think we can improve this legislation by proposing that it move to 25 full-time employees, not 15 head count. I suggest that 15 head count does not represent the sort of business that has the capacity to understand regulation and spend their time worrying about the legal side of how to undertake a dismissal—not ‘fairly’ but according to the rules, which is far more what it is about. The vast majority of employers would wish to dismiss someone simply because they do not suit the job; they would wish to dismiss them fairly. But if they do not tick all the right boxes at all the right times, they can end up being subject to the sorts of prosecutions and costs that Senator Abetz talked about before.

I think that if this government wants to persist with going for an unfair dismissal exemption limit of 15 head count they should just come clean. Why do they not just honestly say, ‘We want to get rid of the unfair dismissal exemptions altogether’? When you get down to a head count of 15, you are talking about busy milk bars, sandwich bars and other organisations that might have two or three full-time employees—perhaps even husband and wife—and a lot of casuals coming in to help out. These are not the sorts of organisations that have the resources and the capacity. This government does not really care about whether businesses have resources or capacity to undertake the technical aspects of meeting unfair dismissal requirements; what they really care about is making the playing field as uneven as possible for small business. Why not just be honest and say, ‘We want to get rid of the exemption altogether; we want everyone to be immediately liable to meet the unfair dismissal provisions’?

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

I will not speak long on this point, because I will speak longer on the amendment that Family First will bring on next, which is to have ‘small business’ defined as 20 full-time equivalents. I think we all pretty well agree around the chamber that small businesses need to be treated specially and differently, so that is not the debate on this point. It is just defining what a small business is, and I will speak on that further. Without pre-empting the will of the chamber, I think we will find that there may be more support for 20 than for 25 employees.

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

Whilst I will formally move my amendment shortly, subject to the other amendments of the coalition and Senator Fielding, I am grateful to Senator Boyce for a world tour of thresholds for small businesses. My position is this: a reasonable definition for a small business in the context of unfair dismissal legislation would be 20 full-time employees. This is about taking into account the difference between the capacity of a small business to deal with an unfair dismissal claim and that of larger businesses which may have HR resources and the capacity to fight a claim. I think Senator Abetz makes a point about unfair dismissal claims—and I have done a few in my time, many years ago, for both employers and employees—that there is in those claims an element of commercial decisions being made where the merits were not the primary consideration. That is certainly unfortunate.

I believe that, as Senator Boyce says, Australia is out of kilter with other countries on the threshold; that 50 seems to be the ILO, EU and UK threshold for small businesses; and that there is a real issue with the hospitality sector, where, if you have two or three full-timers and 14 or 15 casual staff, some doing only six hours a week regularly, you would go over that threshold. But I feel comfortable about putting a figure of 20 full-time equivalents to the chamber. Unlike Work Choices, where there was no protection whatsoever for a business of less than 100, there is protection here even for employees of small businesses. It is administratively simpler and there is a fair dismissal code, and I think it is important that we take that into account. Workers in a small business will still have a statutory protection. There will still be a requirement for a warning in accordance with the code. There still will be a provision for natural justice. There still will be an ability to access relief if it is unfair. But it makes it simpler for small businesses, without the fear of being embroiled in costly litigation, as long as they comply with the code and do the right thing.

I will say more about my amendment when I formally move it, but the fundamental difference between my amendment and Senator Fielding’s amendment, which both seek 20 full-time employees, is this: unlike Senator Fielding’s amendment—and this is not a criticism—my preferred approach is to exclude the redundancy provisions. Whilst the government says there ought to be some consistency in the number 15 for redundancies and unfair dismissal claims, I see as two distinct concepts the entitlement for redundancy payout and the ability to make a claim for an unfair dismissal, whether those are via the code or not. My position is that the two should be kept separate. I do not want to see any change to the redundancy provisions that are currently proposed. I do not want us to shift from the figure of 15, but unfair dismissal claims are a separate matter altogether and I ask the chamber to consider that difference between my amendment and that of Senator Fielding. Again, it is not a criticism of Senator Fielding, but it is a different approach with respect to that.

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

If I may briefly suggest a procedural issue: it seems to me that there will potentially be a number of divisions. Can I suggest that we have a cognate debate in relation to the proposed amendments of the opposition, of Senator Xenophon and Senator Fielding so we air them all? Then we can have rolling divisions to save senators being brought back and forth to the chamber, and have those divisions straight after. The difference between the amendment proposed by Senator Xenophon and that proposed by Senator Fielding has been recognised by the coalition. In our raft of amendments on sheet 5739 revised 2, we did have that provision for redundancy to which Senator Xenophon refers.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

Is it the wish of the Senate that we conduct ourselves in the way suggested by Senator Abetz? That being the wish of the Senate, we will do so.

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

I was going to address all of the matters in one go. Quite frankly, I think they are all in the same area. Let me start from the beginning of this debate. One of the defining issues in the lead-up to the 2007 federal election was workplace relations. The Rudd government, when in opposition, took a particular position on workplace relations and argued it daily across the country—from every opposition frontbencher, from every backbencher, from the Leader of the Opposition and from the Deputy Leader of the Opposition. We released our Forward with Fairness policy in April 2007 and the policy implementation plan in August 2007. It was not something we put under the carpet. It was not something we did not tell the electorate we were going to do. We made it central to our election platform for the November 2007 election—central; it was a key part of Forward with Fairness. The key part: the unfair dismissal provisions contained within it. It was a chapter of its own. The Howard government took away most from Australian workers any right to challenge a dismissal that was harsh, unjust or unfair.

I think it is important at this point to clearly expand on another key element of the government’s unfair dismissal provisions, which were also taken to the Australian people in November 2007 and which are contained in this bill: small businesses with fewer than 15 employees will have a 12-month period of grace free from an unfair dismissal claim to determine whether an employee fits in their business. For businesses with 15 or more employees, that period is six months. I think by any measure that is enough time to judge whether an employee is going to work out or not. However, just to ensure that the process remains simple, fair and flexible for employers and employees, we said we would develop a streamlined small business fair dismissal code. If employers need to get rid of an employee because they are not doing their job properly, once again, the Fair Work Bill fulfils this election commitment.

It is about ensuring that there are simple, fair and flexible rules. Again, it passes what I would call the common-sense test. For all the users of a system—large and small employers and their employees, and for all of those that Senator Boyce would sentence to ignorance—we promised a better process in Fair Work Australia to ensure that employers and employees were brought together quickly and professionally to deal with these claims in a non-legalistic manner. The Deputy Prime Minister repeatedly pointed this out. On page 18 of Forward with Fairness: policy implementation plan, it clearly states that the special small-business arrangements that I have outlined above will apply to small businesses with fewer than 15 employees. During 2007, the definition of ‘small business’ as ‘fewer than 15 employees’ was a significant counterpoint to the former Howard government’s unfair dismissal provisions contained in Work Choices, which stated that any business with 100 or fewer employees could sack any worker at any time and give no reason whatsoever. It was emphasised repeatedly in debates. On 24 November, the Australian people voted for the Australian Labor Party and voted in favour of the definition of ‘small business’ being ‘fewer than 15 employees’ as the benchmark between the two processes.

At this point in the debate, I think it is important to remind the Senate why this definition of ‘small business’ was chosen. It was chosen as a definition based on a headcount, counting full-time, part-time, and regular and systematic casual employees. There are sensible and logical reasons as to why this number and method of counting was chosen. The formulation of fewer than 15 full-time, part-time, and regular and systematic casual employees reflects a long-standing definition of ‘small business’ in the workplace relations arena. It was adopted by the full bench of the Australian Industrial Relations Commission in 1984 in the TCR—termination, change and redundancy—test case. It has been part of industrial relations practices for over 20 years.

We chose the same benchmark for the application of the small business unfair dismissal procedures so that small businesses would have a simple and easy to understand scheme. They can look at a roster, count their staff by name and know whether they are in the unfair dismissal process or whether they are not. This definition remained for redundancy pay eligibility even under the coalition. They kept that provision until 2005, when the former Howard government, without reference to the Australian people, introduced Work Choices, which, bizarrely, changed it to any small business with fewer than 100 employees.

The opposition, Senator Xenophon and Senator Fielding have all put this evening their own changes to the definition of small business in regard to unfair dismissal. They may forgive me for saying this, but there is no logic or rationale to any of the proposals they put forward. They are complex, unwieldy, uncertain and quite frankly unworkable. The opposition wants a small business to be defined as having fewer than 25 full-time equivalent employees for the purposes of unfair dismissal and fewer than 15 employees based on a head count for redundancy. The logic escapes me. Senator Xenophon wants a definition of fewer than 20 full-time equivalent employees for the purposes of unfair dismissal and a head count of fewer than 15 employees for redundancy. Senator Fielding wants a definition of fewer than 20 full-time equivalent employees for the purposes of unfair dismissal and fewer than 15 full-time equivalent employees for redundancy.

Each of these versions of these amendments propose that the number be calculated in terms of full-time equivalent positions, not in terms of the count of individual employees. But in the debate no-one has attempted to explain how full-time equivalent positions will be worked out. They have said in part that it will be left to regulation—‘Let someone else work it out; let someone else figure out how we’re going to do this.’ In other words, they will put it into the hands of a writer of regulations to sort out how this will actually work.

It could be too hard, especially for hardworking businesses. We hear the argument from the other side that small businesses are under the pump. We accept that. We hear that they have little time, because they are too busy running their business. We accept that. We hear that they will have little time to address some of these matters. We accept that. So what does the Labor Party propose? We propose fair and simple ways for them to deal with unfair dismissal. They can use the small business code to dismiss employees. It is simple to work out whether you are subject to this in the first six months or 12 months by counting your employees. In a small business, you know them by name; you know each and every one of them by name. That is a very simple process. You can see them, you can count them and you can easily write down on a sheet how many you have.

A definition based on full-time equivalent employees would require a complex regulation to begin with. But just think about what the regulation would have to deal with. What are ordinary full-time hours? How will overtime hours be treated? What about a business with a seasonal work force or a business with fluctuating hours from week to week? Over what period will the hours be averaged—a week, a month or a year? And so it goes on. I do not have to use just those examples. I am sure that all around here can think up many more that show why it would (a) be difficult, (b) be complex and (c) not always provide the right answer. It might change and vary, and that leaves it open for debate as to whether or not you have those employees there or not.

If any of these proposals were adopted, an employer could never say with any certainty whether they were in or out of the small business scheme at any given time. These amendments make it more complicated, not simpler. We want to be able to provide a special guide for small businesses on all the laws related to termination of employment on redundancy and unfair dismissal.

One of the reasons why the opposition and, it appears, Senator Xenophon and Senator Fielding say that they want to make these amendments is because of the economic climate. On this side of the Senate, we think that in good economic times and difficult economic times employees are entitled to job security. They need some protections. Small business owners need to be able to walk into their staffrooms, count the people in there and know what their legal obligations are without spending hours of their time on a computer with pay records to work out what their full-time equivalents are or could be.

The opposition says that they will judge this legislation on a number of tests. We have heard them iterate those tests this evening. Does it extend union power? Clearly, no. This is about small business and about ensuring that there is a small business code. It is about ensuring that small business has certainty. So, tick, it meets that; it does not fall under that wheel. Does it provide a disincentive for employment? No; clearly, it does not. Every business has a minimum of six months to test a new employee to make sure that they fit in with their business. All the evidence set out in the explanatory memorandum makes it clear that employment security law has no significant effect on employment decisions. Another test that the opposition use is: does it go beyond what the Labor Party took to the last election? No. It meets our policy commitments to the letter.

But we know that this is not about the tests that the opposition have set in this debate. I listened closely to Senator Boyce’s contribution. Curiously, it reminded me of what Senator Joyce said this morning at the Senate doors. He said that opposition policy was about providing that small businesses with fewer than 25 employees should be exempt from unfair dismissal laws and so the definition of ‘small business’ must be changed. Senator Boyce harked to the same argument, using the term ‘exempt’. The opposition want to exempt small business from the operation. Examples from across the globe were given using the phrase ‘exempting small business’. There were arguments about whether it should be 50, and a range of other proposals were put forward.

I have news for both Senator Boyce and Senator Joyce. They are not exempt. It is simply a modified scheme that applies to employees of small business. The opposition, as demonstrated by both Senator Joyce and Senator Boyce, argue and completely expose their inability to grasp the basic element of the unfair dismissal scheme we put forward, which shows that this debate is not about good public policy from the opposition and it is not about principle from the opposition; it is in their very heart that they cannot let Work Choices go. They want to argue and argue about maintaining unfair dismissal in the way that they have reflected it by exempting small business, and they continue to make that point even this evening.

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

The Greens will not be supporting these amendments. The Greens position very strongly is that we believe in universal access to unfair dismissal laws and in fact we do not really support the government’s level of 15, and we have made that extremely clear. But we have said that we are prepared to wear that because they did go to the electorate with that figure during the election. We will not be supporting any move above 15 because we do not believe that people working in small business should have different rights with respect to unfair dismissal rules.

Senator Boyce asked why the ALP does not just come out and say that everybody should have access to unfair dismissal rules. That is about the only thing that Senator Boyce has said that I agree with. I think they should give it to everybody and get rid of the 15-person limit.

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

At least you are honest about it.

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

We have said that the whole time. We in fact went to the election with that policy. The ILO was again used by the coalition to justify their position. They used it last night, although I will again note that they did not support the Greens’ very sensible amendment to ensure that the fair work legislation was in fact consistent and gave effect to ILO conventions. However, after having knocked our amendments off, the coalition still uses the ILO definition. It is interesting to look at the ILO definition. Their resolution states that small- and medium-sized enterprises are defined according to national custom and practice. This bill is setting the national custom and practice at 15. The Greens do not happen to agree with the level of 15, but that is what this bill is doing. So it is not fair or right to be quoting the ILO definition for a small enterprise at a certain level when it is in fact up to us to set that. Australia’s custom and practice has, since 1984, been 15. We do not agree with the practice but this bill is giving effect to that custom. The ILO convention in relation to this issue also states that exclusions are permitted in relation to:

… other limited categories of employed persons in respect of which special problems of a substantial nature arise in the light of the particular conditions of employment of the workers concerned or the size or the nature of the undertaking that employs them.

This has been understood to refer to workers employed in genuinely—and I emphasise the word ‘genuinely’—small or family businesses along with managers, apprentices and agricultural workers. What we do not accept is that businesses of 20 staff, or particularly of 20 full-time-equivalent employees, have special problems of a substantial nature in relation to the scheme for unfair dismissal in this bill.

So can we please drop any reference to and abuse of ILO conventions to justify your definition of small business to try to jack it up to 20 or 25 full-time-equivalent employees, which we all know exceedingly well means that in reality you want to hike it up to 50 or 60 because full-time-equivalents means counting in part-time and casual people so that of a sudden we will have businesses included here that have 50 or 60 employees. I think we are getting closer and closer to that magic number of 100 again, don’t you? That is exactly what they are trying to do. They are trying to undermine the government’s election promise of 15, which the Greens were never supportive of—but we think it is a hell of a lot better than 20 or 25 full-time-equivalent employees. So we will not be supporting any move away from that number.

I will note, as Senator Xenophon and Senator Ludwig mentioned, that in the revised amendments sheet the opposition have changed their amendments so that the exemption for redundancy pay is limited to 20 staff, and that is on a head count. Senator Fielding’s figure—I am sure he will correct me—is 15. This makes it inconsistent. It is messy to have two different definitions of small business, but of course it achieves their objective of trying to hike it up so that more and more people do not have proper access to unfair dismissal rights.

We are talking about small businesses, in particular those in retail and hospitality that employ a lot of part-time and casual workers. And guess what? These are the jobs of the most vulnerable workers—women, young people and quite often non-English-speaking people. Guess which workers were affected most by Work Choices? You got it—the vulnerable workers. Research has shown that it was the vulnerable workers—women, young people and those in vulnerable jobs—who were the most affected by Work Choices. And here we have the coalition—and, yes, I am going to bring out the dead body again, because we have to keep reminding people that that is what is driving this agenda—who keep saying they have put the knife in the heart of Work Choices, but in fact they have not. They keep trying to drag it back. This amendment will once again affect the most vulnerable workers in our community, the same way Work Choices does. That is why the coalition want to raise this limit to 20 or 25. The Greens will not be supporting it. We put the government on notice very clearly—we have in the past and we will once again—that we will not be supporting any move to increase this threshold from 15.

The coalition and the two Independents are not only trying to raise this threshold, but they are making the threshold full-time equivalents, not heads counted. The Greens will not support it. We will not wear it. This is a return to Work Choices, which clearly undermined workers’ rights and clearly enabled people to be unfairly dismissed. We will not support it. It is not part of a fair industrial relations system and it is taking us back to Work Choices.

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

Since we will be voting for the amendments in a rolling block, in a sense, I will indicate that in terms of the psychology of small businesses there is a level of apprehension out there in the smaller cafes and the businesses that employ a lower number of employees. This is about supporting them, and job creation, in terms of their confidence. I think it is fair to say that I would not be moving this if it meant that there was no protection. But instead there is a simplified code—a fair dismissal code—which I think will give those small employers comfort in terms of dealing with these matters in a streamlined fashion. It is about giving those small businesses the confidence to continue to take on people. A threshold of 15 is simply too low.

Senator Boyce has mentioned the ILO, the OECD and the EU in terms of definitions of small business but can I indicate that the definition of 20 persons—it is not 20 FTE; I do not want to mis-state the position at all—which is the definition here in Australia, is accepted by the Australian Bureau of Statistics and it is the threshold used by the Telecom Ombudsman for a number of disputes. The Small Business Coalition supports it as does the Council of Small Business Organisations of Australia. ASIC, I think, uses it in terms as a criterion for grants. The Commonwealth uses it for grants for TCF, and DEEWR uses it for employment skills in relation to disabilities. Twenty is the threshold; it is a consistent figure in legislation. So 15 is out of kilter with respect to the definition that has been established over many years in Australia, albeit much lower than what has occurred in other jurisdictions. I think that 20 is much more reasonable.

And I believe that number is much more reasonable in the context of the current economic circumstances. I know the government says that this should be for both the good times and the bad times, and I accept that, but given that the government has had two stimulus packages, and the thrust of those was about making sure that there was confidence in the economy, I think that it is important that we do not lose sight of the nervousness of small businesses to take on staff. And the fact is that there will be a statutory safeguard through the unfair dismissal code—and that, to me, is a fundamental issue to be considered in relation to this.

In terms of the onerousness or otherwise of having a full-time equivalent calculation, COSBOA, the Council of Small Business of Australia has indicated in their correspondence to me that they feel that that is not a significant issue. That is something that can be calculated and the amendment does provide for regulations to put that in place. I respect the Greens’ position and I respect the government’s position but I think the figure 20 is more realistic in the context of what a definition of a small business is in this country.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The question is: is the government right to stand by 15, endorsed by the people of Australia, in a defining election which rejected Work Choices, when it is not endorsed by the Senate? I think it should. The debate we have had is about whether the threshold should be 15, 20 or 25, and whether it be full-time, full-time equivalent or simply a head count of the people working in an enterprise. One gets the clear impression that it would not matter what number was put forward by the government here, there would be argument, from the opposition at least—if not the Independents on the cross bench—that it ought be higher. Of course, the same lobbying forces would apply. But here is the question to Senator Xenophon, Senator Fielding and the opposition: are you really prepared to force a double dissolution on the definition of small business being 20, rather than 15 as endorsed by the people of Australia at the election of 2007?

Senator Boyce shakes her head to say yes. I ask that a little bit of thought be given to that, and I ask that a little bit of probity and responsibility be brought to this question. There are important issues in this legislation about the relationship between employers and employees in a country which is defined by the term—to quote the frequent statement of the last Prime Minister—‘a fair go’. Is it a fair go to have the Australian people back at the ballot box because the opposition and two crossbenchers in this place did not accept the adjudication of the Australian people at the last ballot box? I do not think so. I think it would be very easy to get locked into a pursuit of supplanting the figure 15 with 20 or 25 as a test of wills, but the consequences would be quite great, if not quite grave. I do not think the Australian people want to be confronted with a vote again by an intransigent opposition or two members of the crossbench on this defining matter.

The government was elected by the Australian people, above all issues, rejecting Work Choices. The government made it clear—and who of us watching this matter can forget—that it would define ‘small business’ in the context of this legislation as one with 15 or fewer employees. It was very, very clear to the Australian people in 2007, and they endorsed it.

I say to my colleagues in this place who might want to make a stand on this: this is not the issue that should bring down this legislation. If there is some other matter then let it be brought forward. The argument will be had about why the number of employees should be five or indeed 10 higher. We will hear about the changed economic climate, but the argument goes both ways. That economic climate also makes it tougher on employees. We are talking about circumstances in which, for every employer, there are 15 employees. All components of this Senate recognise that 15 is not the cut-off as far as a rejection of any further unfair dismissal provision is concerned. They are simplified but they remain there, as Senator Xenophon just pointed out.

So that is it—this is a defining issue. I put it to my fellow senators: are we really going to obstruct the government on an issue on which the people clearly backed this government, to the point where another election may be forced later this year? Let me counsel members thinking about that to go down that road and think about the consequences. It would be unfair to the Australian people, who have made a judgment on this. It would not be responsible as far as electoral politics are concerned. Sure, if this was new, if this was an issue that had not been canvassed, if this government had been elected on other matters and were suddenly bringing this in here—like the Howard government was elected on other matters and brought Work Choices in here—the people might judge that badly at the next election. But I can tell you what will happen at the next election if this becomes a stumbling block: the people will judge those who made it a stumbling block—and the Senate is the clear arbiter on this matter—very badly indeed. Like my colleagues, I could go into the minutiae—and they are important—about these numbers. But, ultimately, the people have voted on this matter, and I do not think the Senate should defy the people’s judgment. That would be very unwise. So my counsel is that, while the argument is being put forward to change the numbers, the Senate think about this and accept the judgment of the people in 2007—or face the ire of the people in 2009. That is what we are really debating here.

I ask my fellow crossbenchers, Senator Fielding and Senator Xenophon, to think carefully about that. But I ask that particularly of the opposition—you were punished over Work Choices. You were punished over this Senate being turned into a failure of a watchdog—

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

A watchdog!

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

and you ought not forget that lesson. Yes—the watchdog of the interests of the people—

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

Exactly!

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Boyce, let me tell you: there is never a more important function of a watchdog than to stand by the people when they have made their judgment. It does not always happen, but in this particular circumstance—

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

Like you did on the GST—come on! Your own voting record shows you are wrong.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Senator Abetz, let me tell you about the GST: the Greens made our position clear and were elected into this place on our stand on the GST, and we carried it through faithfully. On Work Choices, you were punished; you were put out of office on the matter. As Santayana said, if you do not learn from history then history will punish you. That is my counsel—you can take it or leave it. We are arbiters of this matter, ultimately. There are good arguments for 20; there are good arguments for 25. When Work Choices was being debated in here, it was 50; it was 100 when it was being formulated. But the people accepted 15. It is part of a suite of measures that the people accepted, and I would counsel that we take their judgment on the matter.

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

I do not want to let this go without addressing Senator Xenophon and Senator Fielding. It seems to me, from the argument that they have put, that they are wedded to full-time equivalence. Can I say, and it is part of the argument that I put earlier and it is still sustainable, that I have not heard from Senators Xenophon and Fielding about how workable full-time equivalence will be for small business. My submission is it will be completely unworkable. It will be at the margin where the most pain will come, because employers will not be able to say, ‘Jane, Bob, Joe—I have got full-time, part-time and systematic casuals in place.’ They will have to be able to work out what full-time equivalence will be. And that will depend on what business cycle they are in; what seasonal business they are in, if it is seasonal; what period of the month it is; and whether it is over Christmas or New Year. But under our proposal there will be certainty at that point that they can go to the commission and say, ‘Here are my books. Here are the circumstances that I am confronted with.’ Oddly, Senator Boyce laughs. Unfair dismissal is not a laughing matter. In fact, I think you are so wedded to Work Choices that is why you laugh. You laugh because you think—

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

Senator Boyce interjecting—

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

Order! The senator should be heard in silence.

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

You laugh and insult those people who are trying to ensure that there would be a fair dismissal code for small business that would ensure that there would be flexible, simple arrangements to allow small business to be within the system. That is unlike the position that I think the opposition argued—that it was exempt, that it was outside.

But, going back to the point that I was making, in relation to small business it is my submission that it is critical that you adopt the position that the Labor Party took to the election. We campaigned up hill and down dale on it. The position we put was crystal clear to the electorate. It was crystal clear what we were going to do when we got into office. I am fortunate enough to be in the position here today arguing for that, and I am not going to let it go without knowing in my heart that I have said everything that I could possibly say to make this happen.

We argued for Work Choices to be gone, to be got rid of. We argued for AWAs to be gone. We argued that there would be unfair dismissal laws. We argued against 100 employees being exempt from the system. We argued for our policy and it was clear. We put more detail in our platform and in the policies that we took to the election than you would expect. We put in the detail of what we would actually do, and I am here now doing just that. What you argue is that outside the industrial relations arena you might know better. You might know that the ombudsman from the telecommunications industry might have a different measure. You argue that there might be a more practical measure somewhere else. I am arguing from the industrial relations framework that has existed in this country for many years. It has used 15. It has used full-time employees and it has used part-time employees and it has used systematic casual employees. Why? Because they know what the terms mean as they have dealt with them over the years. The Australian Industrial Relations Commission—and in the future Fair Work Australia will—know how to deal with it. They know the sense of it. They will then ensure that it operates fairly and that it will operate easily for small business.

What you are both now doing, with respect, is adding a complication that should not get up, that is unnecessary, that is unworkable and that the commission will have to turn their mind to at the margin as to how it will operate. You will provide uncertainty to small business in this area, particularly small business at the margin. That is what you will do, and if I can argue you out of it in this chamber then I will do everything that I possibly can to convince you as to the right position to adopt. That is the position that we have put forward in our bill, not only because it is what we took to the election but also because it is simple, it is fair and it works. It has worked, because we know that the commission have used these terms before. They know what they mean and they can engage small business. Small business will be able to work with them—because, unlike Senator Boyce, I think that small business in this country is clever. It does work hard and it will be able to use these laws to ensure that it can dismiss people when it needs to and it can employ people when it needs to, and it will go on being profitable in this country.

We know that what you are now trying to do will be difficult to put in regulation and will be difficult to make work. It will be difficult to ensure that we have a certain position for small business. What I have learnt over many years from small business, having dealt with small business from a range of places—from both the Public Service and the union movement—is that they want certainty in their life: certainty about what the industrial relations laws are, certainty about what the tax laws are and certainty about a whole raft of legislation. So they argue for certainty. Why? Because if it is certain they do not have to considerate it, they do not have to think about it, they know what the rule is and they operate under it.

I will not labour the point anymore. If I have not convinced you, I am sorry, because it is just so critically important for this government to ensure that we do change these industrial relations laws, get rid of the last vestiges of Work Choices and make sure that we can have a fair, simple and flexible system for small business.

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

If I can focus on the issue of the calculation that Senator Ludwig has articulated so well, the Council of Small Business Organisations of Australia, COSBOA, to paraphrase an email that they sent to me, essentially say that unfair dismissal is not something that happens often or on a whim. They say that, if the occasion arises when a small business employer wants to dismiss someone and is concerned that it could be construed as unfair dismissal, they should be advised to contact Fair Work Australia before taking the action and it is unlikely to be too onerous to add up the hours of work of various employees in terms of full-time equivalence. I am just putting simply what the peak body for small businesses in this country has said. I restate my position that it is a concern where there is a lack of confidence by small businesses in dealing with these claims. If that is an impediment to taking on a few extra workers, that is a real concern to me. But, again, we do have that fundamental protection of the fair dismissal code, which will contrast significantly with Work Choices.

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

I have listened carefully to the arguments. I find it interesting that Senator Collins may have brought in the mascot for the Labor Party, called a goose I think. I don’t know whether it is your mascot, but that just shows how seriously you are treating this debate.

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

What are you talking about?

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

We will get back to the substantial issue here. I agree with the Labor Party that the small business people are clever; they are not dumb. I also believe that workers are clever and are not dumb. When you think about it the Australian public are also quite smart. Maybe what the minister should do tonight is tell this chamber how he is going to go to the public with a double dissolution around the number 15. Tell us how you are going to do that. Are you sure that when the Australian public voted at the last election they were voting for 15 employees as a definition of small business?

The whole idea about the Senate is that you review and you scrutinise. A government has a mandate but the Senate also has a mandate to review and scrutinise. So you just cannot say that it was 15 and we had it as a policy going through the election. The Australian public did not vote for you for that. We all voted on a couple of issues in the last election, one was Work Choices and Family First is on the record as voting against it. And the majority of the Australian public were against it. The second issue was the environment. Those two issues were pretty important at the last election.

This Senate is doing its proper job. When this bill gets passed in this chamber, in whatever shape or form, it will send a signal that Work Choices has gone. But we need to make sure that we actually use the proper process. You cannot circumvent it. You cannot try to take shortcuts. That is when you get problems. That is what happened last time when there was a majority held by one party in the Senate. There was the lack of scrutiny and lack of genuine debate going back and forward. It is good that we can have these debates—15, 20, 25, effective full-time; these are important issues we must get right.

The GFC that the Prime Minister mentions so often frightens small business too, and a lot of them are family based businesses. We have to get the balance right with this particular legislation that impacts on all Australians in some way. These are the workplace laws for this country and we should make sure that the Senate does its job by scrutinising what the government puts forward. It is extremely important and we should all have a very high regard for that.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

We are considering opposition amendments (2) to (5) on sheet 5739 together, Family First amendments (1) and (2) together and Senator Xenophon’s amendments (1) to (4) together. I remind the Senate that the intention of a cognate debate is that we deal with the debate on all of those amendments at the one time and vote sequentially and without interruption on those amendments. If there is no further debate on these amendments, the question now is that the motion of Senator Abetz on opposition amendments (2) to (5) on sheet 5739 revised be agreed to.

Question put.

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

by leave—I move Family First amendments (1) and (2) on sheet 5733 revised 3:

(1)    Clause 23, page 41 (line 31), omit “15 employees”, substitute “20 employees”.

(2)    Clause 23, page 42 (line 5), at the end of subclause (2), add:

   ; and (c)    the number is to be calculated in terms of full-time equivalent positions, not as an individual head count of employees; and

             (d)    the regulations must prescribe a method for the calculation of full-time equivalent positions for the purposes of this section.

Question negatived.

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

by leave—I move amendments (1) to (4) on sheet 5760:

(1)    Clause 23, page 41 (line 31), omit “15 employees”, substitute “20 employees”.

(2)    Clause 23, page 42 (line 5), at the end of subclause (2), add:

   ; and (c)    the number is to be calculated in terms of full-time equivalent positions, not as an individual head count of employees; and

             (d)    the regulations must prescribe a method for the calculation of full-time equivalent positions for the purposes of this section.

(3)    Clause 121, page 122 (line 5), before “Section”, insert “(1)”.

(4)    Clause 121, page 122 (after line 11), at the end of the clause, add:

        (2)    Subsection 23(1) has effect in relation to this section as if it were modified by omitting “20 employees” and substituting “15 employees”.

        (3)    Subsection 23(2) has effect in relation to this section as if it were modified by omitting paragraphs (c) and (d).

Question put:

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

If it were to suit the Senate’s convenience, it might be an appropriate time to start our way through the right-of-entry amendments. I understand that there has been cooperation between all the parties as to how these matters ought be dealt with in some sensible order. If that happens to be agreed, then I think Senator Fielding would have the first call to deal with his amendments (4) and (R5) on sheet 5733. If the minister is agreeable, let’s flick to Senator Fielding.

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

by leave—I move Family First amendments (4) and (R5) on sheet 5733 revised 3 together:

(4)    Clause 479, page 390 (line 23), after “ordinary meanings”, insert “subject to section 480A”.

(R5) Page 391 (after line 9), at the end of Division 1, add:

480A Application of this Part

        (1)    This Part, other than Subdivision B of Division 2 and any provisions relating to that subdivision, does not apply in relation to small business employers or their employees.

        (2)    In this Part:

member of the permit holder’s organisation does not include an employee of a small business employer.

premises does not include premises occupied by a small business employer.

        (3)    Nothing in this Part authorises a permit holder to enter premises occupied by a small business employer.

These amendments relate to right-of-entry provisions for small businesses. The government has already set as a principle that small businesses should be treated differently under the Fair Work Bill. That principle has been applied because they know that small businesses actually need to be treated differently. Family First is seeking to extend the treatment of small businesses as being different to other businesses through the right of entry.

The issue here is that, if you go and ask a lot of small businesses around your local area whether they would like the unions to be entrenched—that is the word I would use—as the policeman of workplace contravention, in other words, to walk in, after being authorised to do so, and say, ‘Something is not quite right in your workplace,’ most small businesses would say, ‘You’ve got to be kidding.’ There is a Workplace Ombudsman. There is Fair Work Australia. These are statutory bodies that have powers to investigate breaches of the workplace—and quite rightly so.

What Family First is seeking to do here is allow small businesses to not be overly burdened by having to worry about someone else, which could a union, being authorised to go in as a so-called policeman. We think it needs to be an accountable statutory body, like the Workplace Ombudsman and Fair Work Australia. They have those powers and they are accountable as statutory bodies. I must say here that I am not against workers, I am not against unions and I am not against businesses. But with the Fair Work Bill we need to get the power balance right between workers, businesses and unions. We had a similar debate about getting the balance right with Work Choices, and quite clearly the balance of power there was wrong—it swayed too far to businesses at the expense of workers. Now we are faced with new industrial relations laws for this country, we need to look at the balance of power and get it shared. Too much power with any one of those three groups means that, all of a sudden, one can take advantage of the other.

The government has given special treatment to small businesses with regard to unfair dismissals. We want to extend special treatment to small businesses with regard to right of entry for workplace contraventions. This is not about people in a union not having access to the union. They can still have that access and have the union work through their issues with them. But, at the end of the day, do we actually want to have entrench the unions as the next lot of police on the workplace? There could be some argument that that power is already there. But what we are discussing are whole new workplace laws for Australia and they have to be considered in their totality. Workers can no longer be ripped off like they could under Work Choices because of the National Employment Standards and the awards. It is good that they have the National Employment Standards and awards and that those awards are being modernised, so workers have those protections.

If there is a contravention of the workplace laws, then any worker, whether a union member or a non-union member, has the right to go confidentially to the Workplace Ombudsman and get them to investigate the circumstances. If they are not sure, they can go and consult a union, if they are a member, and discuss the issue with them. But, at the end of the day, it should be reported to a statutory body or authority because that is the right place—we can hold them to account. As I said, I am not against unions, but they are not accountable to anyone other than themselves. I cannot call them in to Senate estimates. They are not accountable to parliament. Statutory bodies are, and they have the powers to go and inspect certain things relating to non-union members.

What Family First is seeking to do is to treat small business as special with regard to right of entry. That is what we are proposing through (R5)(1), which reads:

This Part, other than Subdivision B of Division 2 and any provisions relating to that subdivision, does not apply in relation to small business employers or their employees.

So what the two amendments I am moving basically do is say that union members can still speak freely with their union, but they take the policing of workplace contraventions for small businesses away from unions and move it to only the Workplace Ombudsman and the Fair Work Australia. I would say that, if you go down to your local shopping strip or other small businesses and ask them if they really want the unions to be entrenched as the police force for workplace contraventions, their answer will be no.

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

I can indicate that the opposition will be opposing both lots of amendments by Senator Fielding. First of all, in relation to exempting small business, can I say to Senator Fielding—and I forewarned him I would be saying this—that it is somewhat passing strange that you would vote against a clause that would allow small business to claim conscientious objection, that you would say that should not be allowed, but then say, ‘No small business should be subjected to a union right of entry.’ I confess I do not get it. I want to place that on the record. I do not want to revisit the debate that we had—whenever it was; it seems a long time ago but it was yesterday. But, quite frankly, I remember that when I was in student politics and railed against compulsory student unionism, the first concession that was made was to say, ‘Well, all right, we’ll at least provide conscientious objection.’ That was seen as a concession along the road. So I cannot see why you would vote against that concession if you then say, ‘No union should be allowed into a small business.’ I have made that point. Draw a line under that; move on.

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

I did not say the union was not allowed in the workplace; it was just for workplace contravention.

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

I accept that point but still draw a line and move on. It is interesting that in Senator Fielding’s contribution he told us that the previous government had gone too far, and yes we accept that—we did. But, interestingly in saying that we had gone too far, Senator Fielding now puts in amendments that go further than we even did. So I confess I do not quite understand the thread of logic that is going through Family First in relation to these matters.

We believe and always have believed that there is a role for unions to play—but under restricted circumstances. That is why, for example, we did believe in conscientious objection just as a little restraint in one area, which Senator Fielding voted down. But to say there should be no right of entry at all we say basically goes too far, and then to require that there be 72 hours notice as opposed to what is in the current law, which we legislated, namely 24 hours, we think is the right measure. What it highlights and again using that test that I have applied throughout this: if it is going to be anti small business and allow excessive union power, then we would be very negative to whatever the proposition might be.

But in relation to these two amendments, if the appropriate restrictions are put on at a later time—and we will be going through that—can I compliment the government on the considerable movement they have made with their proposed amendments in relation to right-of-entry provisions. I think that was to save Ms Gillard from having to sell her mother by that backtracking, but we do welcome those changes. Given the regime that I think will come out of the Senate at the end of this discussion, there will be the appropriate checks and balances that do provide the trade union movement with the opportunity to undertake a role that it has traditionally undertaken but within appropriate parameters. I think Senator Fielding’s two amendments would hogtie the unions too much. In this place you hardly ever hear me say that, because the propositions being put up by us we always think are fair and reasonable and the Labor Party usually go in the opposite direction to give more power to the unions. But on this occasion I have to say to Senator Fielding that we as a coalition believe that it does hogtie the unions too much. Therefore, we are minded to oppose those two amendments.

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

The Greens will not be opposing either of these sets of amendments as they relate to right of entry. These amendments go further than restricting right of entry than Work Choices—

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

You will be opposing?

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

We will be opposing these two sets of amendments.

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

You said ‘will not be’.

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

Sorry, did I say ‘will not be opposing’?

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

Yes.

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

I beg your pardon. Let me very, very clearly state that we will be opposing these amendments.

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

I thought that would be the case.

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

Thank you for that, Senator Abetz. These amendments go further than restricting the right of entry than Work Choices did. We believe right of entry is a critical right of freedom of association in ensuring that employees’ rights and conditions at work are complied with by their employers. We note that the ILO Committee of Experts most recent general report which states:

The committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic activity of trade unions which should not be subject to interference by the authorities and should not be limited to communication with “eligible” employees, as trade unions should be able to apprise non-unionised workers of the potential advantages of unionisation or of coverage by a collective agreement.

We note in a revised version of the amendments the restriction on the right of entry is limited to investigating suspected breaches. This still amounts to a fundamental breach of the right of freedom of association. If an employee is a member of a union they should be able to enjoy the benefits of that membership, and that includes the legitimate role of a union in enforcing their members’ entitlements.

We believe that these amendments would turn back our industrial relations system very significantly and, as I said, it goes even further than Work Choices dared to go in restricting the freedom of association of Australian workers. Let me be very clear: we will be not be supporting any of these amendments.

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

It seems that everything to be said has been said and it has left me little to say. If I could add this to the debate: under Forward with Fairness the government promised:

Fair Work Australia will ensure there are appropriate arrangements in place to enable duly authorised permit holders to meet with those workers who are eligible and who want to meet with them, in accordance with right of entry laws.

The government intends to meet that election commitment. Employees have a right to representation irrespective of the size of the business that they work for. The bill’s right-of-entry provisions balance that right of employees to be represented by their union with the right of employers to get on with the job of running their business.

We do not support the amendments that are being put forward by Family First. We understand that there have been longstanding roles under the industrial relations legislation, including under Work Choices, to investigate suspected breaches of awards and to take recovery action to make sure employees are paid correctly. There has never been a small business exemption from right-of-entry laws. Small business employees should have the same access to their unions as employees of large businesses. Any attempt to exclude small businesses from the right-of-entry laws would be contrary to the spirit of freedom of association principles and would go even further, as I said, than Work Choices in restricting union access.

The provision for 72 hours notice of entry goes further than Work Choices. Work Choices required 24 hours notice. The government considers the existing 24-hour notice period to be sufficient for an employer to prepare for a visit from a permit holder. It strikes the right balance amongst business concerns, freedom of association and ensuring that employees are able to access their union representatives. I will not add any further to this debate; I think it is quite clear that these amendments are not supported by the government. They go too far. They do not strike the right balance and, in fact, deprive many employees of fair access to their union.

Question negatived.

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

by leave—I move Family First amendments (11) and (13) on sheet 5733 revised 3 together:

(11)  Clause 487, page 396 (lines 11 and 12), omit “24 hours”, substitute “72 hours”.

(13)  Clause 495, page 400 (line 30), omit “24 hours”, substitute “72 hours”.

I think the chamber has already debated these. I do not want to prolong it any further.

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 (27) on sheet 5739 revised 2:

(27)  Clause 484, page 394 (lines 20 to 25), omit the clause, substitute:

484 Entry to hold discussions

        (1)    Subject to subsections (2) and (3), a permit holder may enter premises to hold discussions with one or more persons:

             (a)    who perform work on the premises; and

             (b)    whose industrial interests the permit holder’s organisation is entitled to represent; and

             (c)    who wish to participate in those discussions.

        (2)    If each person mentioned in subsection (1) is a member of the permit holder’s organisation—the requirements of this section are satisfied.

        (3)    If any of the persons mentioned in subsection (1) is not a member of the permit holder’s organisation, the permit holder must not enter the premises for the purpose of holding discussions with such persons, and must not hold discussions with such persons if otherwise authorised to enter the premises, unless:

             (a)    the occupier of the premises authorises the permit holder, in writing, to do so; or

             (b)    the majority of persons who perform work on the premises agree that the permit holder may do so, and that agreement is communicated to the permit holder, in writing, by the occupier of the premises; or

             (c)    the permit holder obtains a majority support entry determination.

484A Majority support entry determinations

        (1)    A permit holder may apply to FWA for a determination (a majority support entry determination) that a majority of persons who perform work on the premises support the entry of the permit holder to hold discussions.

        (2)    The application must:

             (a)    specify that the permit held by the applicant is valid; and

             (b)    specify that the permit holder’s organisation is entitled to represent the industrial interests of one or more persons with whom discussions are sought; and

             (c)    contain a declaration that the permit holder has requested, but not obtained, the express authorisation of the occupier of the premises; and

             (d)    be made in accordance with the regulations.

484B When FWA must make a majority support entry determination

        (1)    If a permit holder has applied for a majority entry support determination under section 484A, FWA must make the determination if it is satisfied that:

             (a)    a majority of persons who perform work on the premises genuinely authorise the permit holder to enter and hold discussions; and

             (b)    the permit holder’s organisation is entitled to represent the industrial interests of the employees with whom discussions are sought; and

             (c)    the historical coverage and representation by employee organisations of persons at the premises will not be disturbed.

        (2)    For the purposes of paragraph (1)(a), FWA may work out whether a majority of employees authorise the permit holder to enter and hold discussions using any method that FWA considers appropriate.

        (3)    For the purposes of paragraph (1)(c), FWA must have regard to:

             (a)    the industrial instrument or instruments covering the employees at the premises to which entry is sought; and

             (b)    the history of enterprise agreement making at the premises to which entry is sought; and

             (c)    the rules of the permit holder’s organisation.

In moving this amendment, the opposition believes that there should be some further provision in the right of entry in relation to holding discussions. Subclause (1) in our amended clause 484 is a mirror image of that which is in the bill, but we make it subject to subsections (2) and (3), which are the new parts of clause 484. We are saying that if each person mentioned in subsection 1 is a member of the permit holders’ organisation—in other words, if they are trade union members—the situation in subparagraph (1) is deemed to be satisfied. That puts that beyond doubt. We then say that if any of the persons mentioned in subparagraph (1) are not members of the permit holders’ organisation—in other words, if they are not a union member—the union official must not enter the premises for the purposes of holding discussions with such persons and must not hold discussions with such persons if otherwise authorised to enter the premises. This is unless they have the written permission of the occupier of the premises to do so, the majority of persons who perform work on the premises agree that the permit holder may do so or the permit holder obtains a majority support entry determination.

We then move on to go through how that majority support entry determination might be obtained. That would be by virtue of a determination by Fair Work Australia. If there is some dispute about what the majority of the workers want in that particular workplace, that matter could be resolved by Fair Work Australia. As I have been saying throughout this debate, the issue from our point of view is about excessive union power and how that might interact. We believe that there would be excessive union power if the clause as currently printed stands. We believe there should be a limit. We believe it is a modest limit. Basically, if the employer does not want the entry, or the majority of people who work on the premises agree that the union should not be on the premises, that should be the end of the matter. We believe that that is both fair to the employer and democratic for the workforce. If a majority of workers vote for it, they can have that visitation by the union official. I commend the amendment to the Senate.

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

I draw the attention of the opposition to the fact that they seem to have gone a step further than Family First even though they complained about Family First going too far. We never restricted non-union members from talking to a union. I am trying to work out why Senator Abetz would go a step further than the Family First amendment when he says that Family First went too far. You are stopping non-union members talking to a union. We were stopping unions being the policemen, but you have gone a step further. That does not make sense to me at all.

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

What we are looking at, of course, is entry for discussion purposes. It currently only requires that there are eligible employees in the workplace. These amendments would therefore be more restrictive than Work Choices; there is no argument about that. They add a layer of complexity that does not exist in either Work Choices or the Forward with Fairness bill. Any measure which requires majority support in the workplace before a union could enter to talk to employees would result in minority groups of employees being disenfranchised and would be likely to breach international obligations in relation to freedom of association.

The government cannot support this amendment. It is about a proposal to allow employees to decide—the opposition says democratically—if they want a union representative to meet with them in the workplace, and which union that ought to be, before entry can occur. I am not sure what motivates the opposition to think that they can add their own style of democracy to this provision. It is much easier to allow the provision as it stands, and as it continued on, to be the relevant provision—that is, you can have entry for discussion but you have to give 24-hours notice. That is sensible. It is sensible to ensure that the current provision is reflected, which is what the Fair Work Bill contains.

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

The Greens will also be opposing—I want to be very clear—these amendments. In fact, we very strenuously oppose them. We believe these amendments are contrary to the freedom of association, to the ILO conventions on the right to organise and to our industrial history. We do not believe that there is evidence that proves these changes are necessary, and, as I stated earlier, the ILO in its most recent report states:

The Committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic activity …

I will not read out the whole passage again, but you get the basic idea. We think these changes go too far. They are contrary to the freedom of association provisions and ILO conventions, and we will not be supporting these amendments.

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

Can I indicate briefly that I will not be supporting these amendments. There is a fundamental right of association for employees. In terms of this whole right-of-entry discussion, let us put this in perspective. Pre Work Choices, a union official could, using a designated path, go to a designated place at a place of employment in order to hold discussions with employees during lunchtime or at other suitable times. I think that is quite reasonable. No employee is forced to go to the lunch room or the room that is designated to meet with the union officials. I think the government’s position is reasonable, and I do not think this amendment is reasonable.

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

Just, very briefly, to respond: all that would be needed is for one employee to be a member of the union and the right of entry would exist.

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

Senator Xenophon interjecting—

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

I know they do not have to turn up. But, in circumstances where subclause (3)—‘if any of the persons’—applied, that would, in effect, mean that, for that particular category of people, if there are no union members then it would be a vote of the majority of the workers. We have already clarified in subclause (2) that for each person mentioned in subclause (1) that is a member of the permit holder’s organisation then their right of entry is assumed. What we are dealing with is a situation where there are no people who are actually members of the union. One of the difficulties that have been encountered is where a union asserts that it may have the right of entry because they have the capacity to represent somebody ‘whose industrial interests the permit holder’s organisation is entitled to represent’.

Those of us who were at the hearings heard that, for some workers, that might be a multiplicity of unions. In fact, one of the union officials said that they have about 27 pages of rules determining whether or not somebody can be a member of their union. In those circumstances, you could potentially have a rolling number of entries for the same employees. What we are saying is that, where you do not have union members, either the employer says yes or the majority of workers can indicate that they are interested. Of course, in this day and age of communications, if somebody does want to communicate with a union, it is not that hard to look up the phone number and make contact outside of work hours and meet them after work or at lunchtime et cetera. This is about coming into the workplace and the potential for the associated intimidation that goes along with that. Once again, we are talking about, if I might say, those circumstances where union officials are not behaving as one would expect and hope a union official would behave. That is why you have to have these sorts of clauses. We do know of examples; indeed, we just had one on, I think, page 2 of today’s Australian. Sure, it is different to a right of entry, but it is the sort of behaviour—picketing et cetera—where genuine intimidation of workers by trade unions occurs.

We believe that our amendment would provide appropriate balance and protection for small businesses, but we note that the numbers are agin us. In those circumstances, I suggest we move and we will be voting simply on the voices.

Question negatived.

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

by leave—I move Family First amendments (7) to (10) and (12) on sheet 5733 revised:

(7)    Clause 482, page 393 (line 1), before “require”, insert “subject to subsection (1A), “.

(8)    Clause 482, page 393 (after line 10), after subclause (1), insert:

Permit holder must not access non-member records

     (1A)    The permit holder may not require, inspect, or make copies of any employee record (however described) of an employee who is not a member of the permit holders organisation, except with the written consent of the employee.

(9)    Clause 483, page 393 (line 25), omit “The”, substitute “Subject to subsections (1A) and (1B), the”.

(10)  Clause 483, page 393 (after line 28), after subclause (1), insert:

Conditions relating to non-member records

     (1A)    The permit holder may not require, inspect or make copies of any employee record (however described) of an employee who is not a member of the permit holder’s organisation, except with the written consent of the employee.

      (1B)    If the record or document is an employee record (however described) of an employee who is not a member of the permit holders organisation, the permit holder may apply to FWA for an order requiring the affected employer to provide a copy of the record or document to FWA.

      (1C)    FWA may make any order it thinks appropriate in relation to an application made under subsection (1B).

     (1D)    If FWA orders under subsection (1B) that the affected employer must provide a copy of a record or document:

             (a)    the affected employer must provide a copy of the record or document to FWA within the period specified in the order; and

             (b)    FWA must determine whether, and in what form, to provide the permit holder access to information contained in that record or document.

(12)  Clause 494, page 400 (after line 22), at the end of the clause, add:

Permit holder must not access non-member records

        (4)    The permit holder may not require, inspect or make copies of any employee record (however described) of an employee who is not a member of the permit holders organisation, except with the written consent of the employee.

These amendments are about unions having access to records of non-union members. The issue is unions accessing the confidential information of non-union employees that would see a breach of people’s privacy. I know that you can debate this until the cows come home, so we could be here all day, but I still think that unions should not be accessing the records of non-union members. Someone else should authorise that and I believe that Fair Work Australia is the impartial body that should be arbiter of whether or not this should occur. The amendments are basically along the lines that there should not be unfettered access and that Fair Work Australia should adjudicate before any access to the records of non-union members. I will leave it there.

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

I will make a procedural suggestion. It seems to me that the Family First amendments that were just moved could be part of a cognate debate with the opposition amendments that appear immediately under that and also government amendments under that, if that were agreeable. They do cover very much the same territory. If that is agreed around the chamber, which I think it is—

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

So they would be debated at the same time but voted on separately?

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

Yes, that is right.

The Temporary Chairman:

That has the agreement of the chamber, Senator Abetz. From now on, we will be debating those three groups together but having the votes separately.

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

The opposition position is that we believe, not surprisingly on this occasion—although we did concede that on greenfields the government had superior amendments—that ours are superior. In those circumstances, we would be opposed to Family First’s amendments. If ours were to be defeated, we would be minded to support the government’s amendments. I say that with due respect to Family First. In reading through them, we think that the government’s amendments are better than those of Family First.

The government have moved a very long way in relation to the issue of access to the records of non-members. In this day and age the parliament is being broadcast in all sorts of manners and ways. I recall in my second reading contribution making a comment about the importance of providing protection for non-union members. I got this email from somebody attacking me most vociferously and employing the language of—

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

As well as mine?

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

No. They called me a neoliberal and said that I should not be hiding behind this nonsense about the privacy of non-union members and that is was just outrageous. I confess that I did have some delight in emailing back in recent times saying that I think that this government may have certain neoliberal tendencies in relation to these matters.

More seriously, we as a coalition treat very seriously the right of workers to privacy. We believe that access should not be provided to employees’ records. The fact that Ms Gillard tried to get away with this is, we believe, not a good reflection on her. But somebody clearly must have mugged her with the reality that the Australian community, with its sense of a fair go, would not accept the sort of regime that was originally proposed in the bill—especially, might I add, in circumstances in which Ms Gillard made a very strong promise to the Australian people before the election. In fact, on 7 November 2007, at a debate at the National Press Club, she said this:

If you’d like me to pledge to resign, sign a contract in blood—

I am not sure that she would necessarily be able to sustain that one, but that is what she said—

take a polygraph ... give you my mother as a hostage, whatever you’d like. We will be delivering our policy as we have outlined.

Later she said, ‘Current right-of-entry laws will be maintained.’ That was a very strong promise. On 28 August, the Labor Party said, ‘Labor will maintain the existing right of entry provisions. Right-of-entry rules remain.’ It made similar commitments the same day. Interestingly, even after the election, on 28 May, speaking to the Master Builders Australia dinner, Minister Gillard said:

We promised to retain the current right of entry framework and this promise too will be kept.

That was as late as 28 May, after they were elected. The bill that was presented to us clearly did not abide by those fundamental election commitments.

If nothing else, Ms Gillard’s mother must have said, ‘Look, I don’t like the idea of being taken as a hostage. You’d better wind back this right of entry nonsense and allow me to enjoy my life.’ Ms Gillard has wound it back and we congratulate the government. Whatever the motivation was, having had a very consistent line over many years on the right to privacy, we welcome the change and place on the record that those people who make a decision not to join a union now have their right to privacy protected.

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

The main difference between the various sets of amendments is that the drafting of the government is, in the government’s view, more concise and consistent with the position that we want to argue in our amendment around the right of entry provision. Therefore, we will not be supporting the Family First provision.

I will outline the position in the debate. The amendments would provide that a permit holder cannot inspect non-member records unless the relevant employee consents in writing or FWA orders that access be provided. Amendments would not apply to entry with respect to the TCF outworkers or entry under a state or territory OH&S law. I think that is clear. A non-member’s record would be defined as a record that relates to the employment of a person who is not a member of the union. The amendments also provide that a permit holder will not be able to require access to non-member records. A permit holder will be able to seek an order from FWA giving them access to non-member records. FWA will be able to grant such an order only if it is satisfied that access is necessary to investigate a suspected breach relating to a member. And I note that the opposition have indicated that they are not minded to support Senator Fielding’s motion. They do prefer ours at the end of the day, if nothing else for its conciseness and its accurate reflection of the policy.

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

I will address all the amendments together. We do not support any of the amendments. We oppose barriers being placed in the way of unions accessing non-member records. As it stands, union officials can only access relevant records and face civil penalties and lose their permit if they misuse their rights. We believe that this is sufficient protection and we do not need further Work Choices type restrictions continuing so we oppose the whole group of amendments.

Claire Moore (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

The question is that Family First amendments (7) to (10) and (12) on sheet 5733 revised 3 be agreed to.

Question negatived.

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

by leave—I move opposition amendments (24) to (26) on sheet 5739:

(24)  Clause 482, page 393 (after line 6), at the end of subclause (1), add:

             (d)    paragraph (c) does not apply in relation to any record or document pertaining to any person who is not a member of the permit holder’s organisation, unless:

                   (i)    the person provides consent in writing to the occupier or affected employer; or

                  (ii)    the permit holder has obtained an order pursuant to paragraph 483A(1)(a).

(25) Clause 483, page 393 (after line 28), after subclause (1), insert:

        (2)    Subclause (1) does not apply in relation to any record or document pertaining to any person who is not a member of the permit holder’s organisation, unless:

             (a)    the person provides consent in writing to the affected employer; or

             (b)    the permit holder has obtained an order pursuant to paragraph 483A(1)(b).

(26) Page 394 (after line 17), at the end of Subdivision A, add:

483A Application to FWA for access to non-member records

        (1)    The permit holder may, for the purposes of investigating the suspected contravention, apply to FWA for either or both of the following orders:

             (a)    an order to allow the permit holder to enter the premises and to inspect, and make copies of, any record or document pertaining to a person who is not a member of the permit holder’s organisation that is relevant to the suspected contravention;

             (b)    an order to require an affected employer to produce, or provide access to, such records for inspection.

        (2)    FWA may make such an order if it is satisfied that the order is necessary to the investigation of the suspected breach. Before doing so, FWA must have regard to the conditions (if any) that apply to the permit holder’s permit.

        (3)    An application for an order under this section:

             (a)    must be in accordance with the regulations; and

             (b)    must set out the grounds on which the application is made.

Question negatived.

The Temporary Chairman:

by leave—I move government amendments (1) to (5) on sheet PV373:

(1)    Clause 12, page 21 (after line 26), after the definition of non-excluded matters, insert:

non-member record or document: see subsection 482(2A).

(2)    Clause 482, page 393 (line 3), after “document”, insert “(other than a non-member record or document)”.

(3)    Clause 482, page 393 (after line 18), after subclause (2), insert:

Meaning of non-member record or document

     (2A)    A non-member record or document is a record or document that:

             (a)    relates to the employment of a person who is not a member of the permit holder’s organisation; and

             (b)    does not also substantially relate to the employment of a person who is a member of the permit holder’s organisation;

but does not include a record or document that relates only to a person or persons who are not members of the permit holder’s organisation if the person or persons have consented in writing to the record or document being inspected or copied by the permit holder.

(4)    Clause 483, page 393 (line 26), after “document”, insert “(other than a non-member record or document)”.

(5)    Page 394 (after line 17), after clause 483, insert:

483AA Application to FWA for access to non-member records

        (1)    The permit holder may apply to FWA for an order allowing the permit holder to do either or both of the following:

             (a)    require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, specified non-member records or documents (or parts of such records or documents) under paragraph 482(1)(c);

             (b)    require an affected employer to produce, or provide access to, specified non-member records or documents (or parts of such records or documents) under subsection 483(1).

        (2)    FWA may make the order if it is satisfied that the order is necessary to investigate the suspected contravention. Before doing so, FWA must have regard to any conditions imposed on the permit holder’s entry permit.

        (3)    If FWA makes the order, this Subdivision has effect accordingly.

        (4)    An application for an order under this section:

             (a)    must be in accordance with the regulations; and

             (b)    must set out the reason for the application.

Question agreed to.

We now move to Family First and government amendments, which are identical.

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

I am happy for the government to move the amendments. We have been in discussions with the last lot and with this lot as well so there is some consistency there and I am happy for the government to move them.

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

by leave—It would be better if I move them. I move government amendments (1) and (2) on sheet PV374:

(1)    Clause 481, page 392 (after line 22), at the end of the clause, add:

Note:   A permit holder who seeks to exercise rights under this Part without reasonably suspecting that a contravention has occurred, or is occurring, is liable to be penalised under subsection 503(1) (which deals with misrepresentations about things authorised by this Part).

(2)    Clause 508, page 406 (lines 18 to 25), omit subclause (4), substitute:

        (4)    Without limiting subsection (1), an official misuses rights exercisable under this Part if:

             (a)    the official exercises those rights repeatedly with the intention or with the effect of hindering, obstructing or otherwise harassing an occupier or employer; or

             (b)    in exercising a right under Subdivision B of Division 2 of this Part, the official encourages a person to become a member of an organisation and does so in a way that is unduly disruptive:

                   (i)    because the exercise of the right is excessive in the circumstances; or

                  (ii)    for some other reason.

These amendments would clarify when a permit holder would be considered to have misused rights conferred on them by the right of entry part. The amendments would make it clear that permit holders who seek to enter premises for investigation purposes without reasonable suspicion that a breach of the act or a Fair Work instrument is occurring would be liable to be penalised under the provisions of the bill prohibiting the misrepresentation. An inspector or a person affected by the misrepresentation would be able to bring proceedings in the Federal Court or the Federal Magistrates Court seeking penalties against a permit holder of up to $6,600 for an individual person or up to $33,000 for a permit holder’s union. These amendments would also clarify that an official who repeatedly exercised his entry rights with the intention or effect of hindering or obstructing or harassing an occupier or employer would be taken to have misused the right conferred on them by the right of entry part.

There are serious repercussions under clause 508 of the bill for officials, and their unions, who misuse their rights. If satisfied that a misuse has occurred FWA may restrict the right of an official or an entire union by imposing conditions on entry permits, revoking or suspending entry permits or making any other order it thinks fit. The government considers that both amendments clarify the existing right of entry provisions and we commend the amendments to the Senate.

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

Family First have been in discussions on the previous amendments and on these and we obviously support them because they are identical to ours.

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

The opposition supports the amendments.

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

The Greens do not support these amendments.

The Temporary Chairman:

The question is that government amendments (1) and (2) on sheet PV374 be agreed to.

Question agreed to.

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

by leave—I move Green amendments (45), (46) and (47) on sheet 5729:

(45)  Clause 492, page 398 (after line 20), after subclause (2), insert:

     (2A)    Without limiting when a request under subsection (1) might otherwise be unreasonable, similar considerations to those set out in paragraph (2)(b) apply in determining whether a request under paragraph (1)(b) is unreasonable.

(46)  Division 3, clauses 494 to 499, page 399 (line 1) to page 401 (line 26), to be opposed.

(47)  Subdivision C, clauses 508 and 509, page 405 (line 22) to page 406 (line 29), to be opposed.

We have had a substantive debate around right of entry. There are a couple of points I would like to raise before going on to the specific amendments. I have already spoken about the ILO Committee of Experts’ most recent report. In that report they also went on to request the government to indicate measures taken to amend the legislation ‘to lift the restrictive conditions set out for granting a permit giving right of entry to the workplace, and ensure that the group of workers with whom a trade union representative may meet at the workplace is not artificially restricted’. The conditions the ILO wanted lifted have been kept in the bill at clause 513. We have some strong concerns about that. We keep hearing that we are moving away from Work Choices but there are some clear examples of where we are not.

With respect to amendment (45), as I said earlier, we are pleased that while the bill keeps some elements of Work Choices, there has been movement on right of entry, and we are pleased that the government has placed some reasonableness criteria around the ability of the employer to dictate where unions meet employees. The Work Choices provisions operated to essentially deny workers freedom of association. During the committee inquiry we heard extensively about where employees had been forced to meet—under camera surveillance, in an office next door to the boss, in the tearoom and, in one instance we heard of, in the toilet.

We are pleased that the government has moved to deal with that; however, we believe the reasonableness factors should be extended to where the employer chooses the route the union representative must take. Again, during the inquiry we heard stories about the routes union representatives were forced to take to get to meetings. There was a lot of concern raised about that. We think it is reasonable to extend those provisions to include the route the union representative must take.

Turning to amendment (46) the Greens oppose, as we did with Work Choices, the requirement that union officials have a federal permit for entering under state occupational health and safety laws. State laws are state laws and should be regulated by state authorities. We see this as a hangover from Work Choices, and yet another unwarranted extension of jurisdiction.

In amendment (47) we also oppose the Work Choices provision that unions as a whole can be punished for the actions of their officials in breaching permit conditions. Punishment should lie with the individual who committed the breach. You would be surprised to hear that we think that these items improve the right-of-entry provisions in the Fair Work Bill and commend them to the Senate!

Question negatived.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

The second question is that clauses 494 and 495 as amended, clauses 496 to 499 and clauses 508 and 509 stand as printed.

Question agreed to.

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

by leave—I move amendments (1) to (44) on sheet QW366 revised:

(1)    Clause 12, page 10 (after line 15), after paragraph (a) of the definition of affected employer, insert:

           (aa)    in relation to an entry under section 483A other than a designated outworker terms entry: see paragraph 483B(3)(a); and

           (ab)    in relation to a designated outworker terms entry under section 483A: see paragraph 483B(3)(b); and

(2)    Clause 12, page 10 (line 17), omit “subsection 495(2)”, substitute “paragraph 495(2)(a)”.

(3)    Clause 12, page 10 (line 17), at the end of the definition of affected employer, add:

   ; and (c)    in relation to a State or Territory OHS right to inspect or otherwise access an employee record: see paragraph 495(2)(b).

(4)    Clause 12, page 14 (before line 3), before the definition of discriminatory term, insert:

designated outworker terms entry: see subsection 483A(5).

(5)    Clause 12, page 28 (after line 20), after the definition of step-child, insert:

TCF award means an instrument prescribed by the regulations for the purposes of this definition.

(6)    Clause 12, page 28 (before line 21), before the definition of termination of industrial action instrument, insert:

TCF outworker means an outworker in the textile, clothing or footwear industry whose work is covered by a TCF award.

(7)    Clause 478, page 390 (line 10), after “instruments.”, insert “The Division makes special provision in relation to TCF outworkers.”.

(8)    Clause 478, page 390 (line 12), after “employees”, insert “and TCF outworkers”.

(9)    Clause 480, page 391 (line 6), after “employees”, insert “and TCF outworkers”.

(10)  Clause 482, page 393 (line 3), before “relevant”, insert “that is directly”.

(11)  Clause 482, page 393 (line 3), after “contravention”, insert “and”.

(12)  Clause 482, page 393 (lines 7 to 10), omit the note, substitute:

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(13)  Clause 482, page 393 (after line 10), after subclause (1), insert:

     (1A)    However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

(14)  Clause 483, page 393 (line 26), before “relevant”, insert “that is directly”.

(15)  Clause 483, page 393 (after line 28), after subclause (1), insert:

     (1A)    However, an affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

(16)  Clause 483, page 394 (lines 14 to 17), omit the note, substitute:

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(17)  Page 394 (before line 18), before Subdivision B, insert:

Subdivision AA—Entry to investigate suspected contravention relating to TCF outworkers

483A Entry to investigate suspected contravention relating to TCF outworkers

        (1)    A permit holder may enter premises and exercise a right under section 483B or 483C for the purpose of investigating a suspected contravention of:

             (a)    this Act, or a term of a fair work instrument, that relates to, or affects, a TCF outworker:

                   (i)    whose industrial interests the permit holder’s organisation is entitled to represent; and

                  (ii)    who performs work on the premises; or

             (b)    a designated outworker term that is in an instrument that relates to TCF outworkers whose industrial interests the permit holder’s organisation is entitled to represent.

Note:   Particulars of the suspected contravention must be specified in an entry notice, unless the entry is a designated outworker terms entry (see subsection 518(2)).

        (2)    The permit holder must reasonably suspect that the contravention has occurred, or is occurring.

        (3)    The burden of proving that the suspicion is reasonable lies on the person asserting that fact.

        (4)    Subsections (2) and (3) do not apply in relation to a designated outworker terms entry.

        (5)    A designated outworker terms entry is an entry under paragraph (1)(b) for the purpose of investigating a suspected contravention of a designated outworker term.

483B Rights that may be exercised while on premises

Rights that may be exercised while on premises

        (1)    While on the premises, the permit holder may do the following:

             (a)    inspect any work, process or object relevant to the suspected contravention;

             (b)    interview any person about the suspected contravention:

                   (i)    who agrees to be interviewed; and

                  (ii)    whose industrial interests the permit holder’s organisation is entitled to represent;

             (c)    require the occupier or an affected employer to allow the permit holder to inspect, and make copies of, any record or document that is directly relevant to the suspected contravention and that:

                   (i)    is kept on the premises; or

                  (ii)    is accessible from a computer that is kept on the premises.

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

        (2)    However, an occupier or affected employer is not required under paragraph (1)(c) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Meaning of affected employer

        (3)    A person is an affected employer:

             (a)    in relation to an entry onto premises under section 483A other than a designated outworker terms entry, if:

                   (i)    the person employs a TCF outworker whose industrial interests the permit holder’s organisation is entitled to represent; and

                  (ii)    the TCF outworker performs work on the premises; and

                 (iii)    the suspected contravention relates to, or affects, the TCF outworker; or

             (b)    in relation to a designated outworker terms entry under section 483A, if the person is covered by a TCF award.

Occupier and affected employer must not contravene requirement

        (4)    An occupier or affected employer must not contravene a requirement under paragraph (1)(c).

Note:   This subsection is a civil remedy provision (see Part 4-1).

483C Later access to record or document

Later access to record or document

        (1)    The permit holder may, by written notice, require the occupier or an affected employer to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice.

        (2)    However, an occupier or affected employer is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

        (3)    The day or days specified in the notice must not be earlier than 14 days after the notice is given.

        (4)    The notice may be given:

             (a)    while the permit holder is on the premises; or

             (b)    within 5 days after the entry.

Occupier and affected employer must not contravene requirement

        (5)    An occupier or affected employer must not contravene a requirement under subsection (1).

Note:   This subsection is a civil remedy provision (see Part 4-1).

Where record or document may be inspected or copied

        (6)    The permit holder may inspect, and make copies of, the record or document at:

             (a)    the premises; or

             (b)    if another place is agreed upon by the permit holder and the occupier or affected employer—that other place.

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

483D Entry onto other premises to access records and documents

        (1)    A permit holder who may enter premises under paragraph 483A(1)(a) for the purpose of investigating a suspected contravention may enter other premises and exercise a right under subsection (2) or section 483E if the permit holder reasonably suspects that records or documents that are directly relevant to the suspected contravention:

             (a)    are kept on the other premises; or

             (b)    are accessible from a computer that is kept on the other premises.

Note:   Particulars of the suspected contravention must be specified in an entry notice (see subsection 518(2)).

Rights that may be exercised while on premises

        (2)    While on the other premises, the permit holder may require the occupier to allow the permit holder to inspect, and make copies of, any such record or document.

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

        (3)    However, an occupier is not required under subsection (2) to allow the permit holder to inspect, or make copies of, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Occupier must not contravene requirement

        (4)    An occupier must not contravene a requirement under subsection (2).

Note:   This subsection is a civil remedy provision (see Part 4-1).

483E Later access to record or document—other premises

Later access to record or document

        (1)    The permit holder may, by written notice, require the occupier of the other premises to produce, or provide access to, a record or document that is directly relevant to the suspected contravention on a later day or days specified in the notice.

        (2)    However, an occupier is not required under subsection (1) to produce, or provide access to, a record or document if to do so would contravene a law of the Commonwealth or a law of a State or Territory.

Other rules relating to notices

        (3)    The day or days specified in the notice must not be earlier than 14 days after the notice is given.

        (4)    The notice may be given:

             (a)    while the permit holder is on the other premises; or

             (b)    within 5 days after the entry.

Occupier must not contravene requirement

        (5)    An occupier must not contravene a requirement under subsection (1).

Note:   This subsection is a civil remedy provision (see Part 4-1).

Where record or document may be inspected or copied

        (6)    The permit holder may inspect, and make copies of, the record or document at:

             (a)    the other premises; or

             (b)    if another place is agreed upon by the permit holder and the occupier—that other place.

Note 1:  The use or disclosure of information or documents obtained under this section is strictly controlled (see section 504).

Note 2:  The use or disclosure of personal information obtained under this section is regulated under the Privacy Act 1988.

(18)  Clause 484, page 394 (line 20), omit “to hold”, substitute “for the purposes of holding”.

(19)  Clause 484, page 394 (line 21), omit “persons”, substitute “employees or TCF outworkers”.

(20)  Clause 486, page 395 (line 27), omit “Neither Subdivision A nor B authorises”, substitute “Subdivisions A, AA and B do not authorise”.

(21)  Clause 487, page 396 (after line 1), before subclause (1), insert:

Entry under Subdivision A or B

(22)  Clause 487, page 396 (line 11), after “notice”, insert “for an entry under Subdivision A or B”.

(23)  Clause 487, page 396 (after line 20), at the end of the clause, add:

Entry under Subdivision AA

        (5)    If the permit holder enters premises under Subdivision AA, the permit holder must, either before or as soon as practicable after entering the premises, give an entry notice for the entry to the occupier of the premises or another person who apparently represents the occupier if the occupier or other person is present at the premises.

(24)  Clause 489, page 396 (line 25), after “A”, insert “or AA”.

(25)  Clause 489, page 396 (lines 30 and 31), omit “under paragraph 482(1)(c) or subsection 483(1)”, substitute “under:

                   (i)    paragraph 482(1)(c) or 483B(1)(c), or subsection 483D(2); or

                  (ii)    subsection 483(1), 483C(1) or 483E(1)”.

(26)  Clause 489, page 397 (lines 1 to 3), omit the note, substitute:

Note:   Paragraphs 482(1)(c) and 483B(1)(c) and subsection 483D(2) deal with access to records and documents while the permit holder is on the premises. Subsections 483(1), 483C(1) and 483E(1) deal with access to records and documents at later times.

(27)  Clause 489, page 397 (line 7), omit “A”, substitute “A, AA”.

(28)  Clause 490, page 397 (line 15), omit “A”, substitute “A, AA”.

(29)  Clause 490, page 397 (line 19), omit “A”, substitute “A, AA”.

(30)  Clause 495, page 401 (lines 2 to 4), omit subclause (2), substitute:

        (2)    A person is an affected employer:

             (a)    in relation to an entry onto premises in accordance with this Division—if one or more of the person’s employees perform work on the premises; and

             (b)    in relation to a right to inspect or otherwise access an employee record in accordance with this Division—if the person employs the employee to whom the record relates.

(31)  Clause 502, page 402 (line 18), omit “483(5)(b)”, substitute “483(5)(b), 483C(6)(b) or 483E(6)(b)”.

(32)  Clause 504, page 403 (lines 3 to 14), omit the clause, substitute:

504 Unauthorised use or disclosure of information or documents

                 A person must not use or disclose information or a document obtained under section 482, 483, 483B, 483C, 483D or 483E in the investigation of a suspected contravention for a purpose that is not related to the investigation or rectifying the suspected contravention, unless:

             (a)    the person reasonably believes that the use or disclosure is necessary to lessen or prevent:

                   (i)    a serious and imminent threat to an individual’s life, health or safety; or

                  (ii)    a serious threat to public health or public safety; or

             (b)    the person has reason to suspect that unlawful activity has been, is being or may be engaged in, and uses or discloses the information or document as a necessary part of an investigation of the matter or in reporting concerns to relevant persons or authorities; or

             (c)    the use or disclosure is required or authorised by or under law; or

             (d)    the person reasonably believes that the use or disclosure is reasonably necessary for one or more of the following by, or on behalf of, an enforcement body (within the meaning of the Privacy Act 1988):

                   (i)    the prevention, detection, investigation, prosecution or punishment of criminal offences, breaches of a law imposing a penalty or sanction or breaches of a prescribed law;

                  (ii)    the enforcement of laws relating to the confiscation of the proceeds of crime;

                 (iii)    the protection of the public revenue;

                 (iv)    the prevention, detection, investigation or remedying of seriously improper conduct or prescribed conduct;

                  (v)    the preparation for, or conduct of, proceedings before any court or tribunal, or implementation of the orders of a court or tribunal; or

             (e)    if the information is, or the document contains, personal information (within the meaning of the Privacy Act 1988)—the use or disclosure is made with the consent of the individual to whom the information relates.

Note:   This section is a civil remedy provision (see Part 4-1).

(33)  Clause 510, page 407 (line 11), omit “subsection 504(1)”, substitute “section 504”.

(34)  Clause 510, page 407 (lines 12 and 13), omit “employee records”, substitute “information or documents”.

(35)  Clause 510, page 407 (lines 16 to 18), omit “an employee record of an employee obtained under section 482 or 483”, substitute “information or documents obtained under section 482, 483, 483B, 483C, 483D or 483E”.

(36)  Clause 518, page 412 (lines 25 and 26), omit “481 (which deals with entry to investigate suspected contraventions)”, substitute “481, 483A or 483D”.

(37)  Clause 518, page 413 (line 1), before “specify”, insert “unless the entry is a designated outworker terms entry under section 483A—”.

(38)  Clause 518, page 413 (line 3), before “contain”, insert “for an entry under section 481—”.

(39)  Clause 518, page 413 (after line 10), after paragraph (2)(c), insert:

           (ca)    for an entry under section 483A other than a designated outworker terms entry—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker, who performs work on the premises, and:

                   (i)    to whom the suspected contravention or contraventions relate; or

                  (ii)    who is affected by the suspected contravention or contraventions; and

           (cb)    for a designated outworker terms entry under section 483A—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of TCF outworkers; and

           (cc)    for an entry under section 483D—contain a declaration by the permit holder for the entry that the permit holder’s organisation is entitled to represent the industrial interests of a TCF outworker:

                   (i)    to whom the suspected contravention or contraventions relate; or

                  (ii)    who is affected by the suspected contravention or contraventions; and

(40)  Clause 518, page 413 (line 12), at the end of paragraph (2)(d), add “or TCF outworker”.

(41)  Clause 518, page 413 (line 20), omit “a person”, substitute “an employee or TCF outworker”.

(42)  Clause 518, page 413 (line 23), omit “person”, substitute “employee or TCF outworker”.

(43)  Clause 539, page 435 (table item 25, column 1), after “483(4)”, insert:

(44)  Clause 539, page 435 (table item 25, column 1), omit “504(1)”, substitute “504”.

These amendments will introduce a separate subdivision within the right of entry part of the bill to provide specific rights of entry to investigate breaches of entitlements relating to TCF outworkers. The bill currently allows permit holders to enter workplaces to investigate a suspected breach of entitlement if the breach relates to a member of the permit holder’s organisation and a member works on those premises. Permit holders must provide at least 24 hours notice of their entry. These requirements may make it difficult for unions who represent TCF outworkers to investigate whether these workers are receiving their lawful entitlements. Firstly, these vulnerable workers may not be union members or may be fearful of being identified as such. Secondly, the nature of outwork itself means that an outworker does not work at an employer’s premises. Thirdly, providing 24 hours notice may result in evidence being destroyed or the employer attempting to prevent the union from investigating premises where there were alleged breaches.

The government considers that special provisions are necessary to deal with the acutely at-risk sector of the Australian workforce. These amendments enable a permit holder from a union which is entitled to represent outworkers to enter premises, irrespective of whether a union member is present. In addition, the permit holder would be able to enter other premises where documents that were directly relevant to the breach may be kept. This reflects the fact that relevant documents are often kept at different premises from where the work is done.

There will also be special entry rights in relation to entry to investigate breaches of designated outworker terms. These are certain terms in modern awards that impose particular obligations in relation to the use of outworkers. The TCF award creates a regulatory framework that applies to employees and entities that arrange for work to be carried out by outworkers, and unions do have a role in monitoring compliance with these obligations under the award.

For this sort of entry there will be no requirement that an outworker be working at the premises. There will also be no requirement that a permit holder reasonably suspect a breach or have the burden of establishing reasonable suspicion. This is because the nature of these terms means it will often be impossible to know whether or not a breach has occurred. For instance, a designated worker term would include a requirement for a person to lodge records relating to their con

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

I make no reflection but, just in case Senator Fielding is listening, his presence in the chamber would be helpful in relation to my consideration of this raft of 44 separate items. I can indicate that we in the opposition support amendments (10), (11), (12), (13), (14), (15), (16), (30), (32), (33), (35) and (44). I think it has already been indicated that Senator Xenophon has a certain attitude in relation to all the amendments. Therefore I would not seek to delay the chamber for too long, in explaining why the opposition has certain views on other of the amendments, if Senator Fielding were to be so minded as Senator Xenophon. But, whilst we give him the opportunity to return to the chamber—and I fully accept that there would be reasons why he had to leave the chamber, so that is not a reflection on him at all—I will say this to any judicial officer in this country in the event that they ever have to interpret item 10 of the amendments. These days, I understand, judicial officers or the judiciary cast far and wide to assist them in interpretation, but what I would invite them not to do is to go to Senate practice to determine how to interpret the term ‘directly relevant’. In sessional orders we now have the term ‘directly relevant’, which ministers are required to be during question time. If judicial officers were to see the practice in the Senate and say, ‘Yep, this is how we get to understand what “directly relevant” means,’ I think it would give very wide powers in relation to this particular clause. So, in the event any judge, in trying to determine how to interpret this, happens to read the Hansard, I would dissuade him or her from looking at Senate practice in relation to this.

It looks as though we will not have the presence of Senator Fielding, as I was expecting, so I will briefly say that, whilst we as a government—and I remember taking a certain piece of legislation through this chamber—made special amendments and provisions for the TCF sector, and we believe that it is a special sector with special requirements, we do believe, on balance, that many of the extra provisions in relation to right of entry et cetera go beyond that which we would find acceptable. We believe that the right-of-entry restrictions in relation to the general framework are appropriate and we do not support these extra powers. We do understand the difficult and different circumstances in the TCF outworkers section. Coalition committee members had certain recommendations and submissions put to us from those engaged in that sector and they did make a good and powerful case. Yet I do say that, on balance, we are minded not to support all those other changes that were not included in the list of those that I indicated we support. The reason I read out the list of those that we support is that that is a substantially shorter list, but we would not seek to delay the chamber or divide on it unless there was an indication that Senator Fielding was minded to support us in that.

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

I indicate that I support the government’s amendments. They are a significant and substantial improvement on the original bill, and I think that is a good thing. They take into account the Privacy Commissioner’s concerns, so the government has done that. I think, to put this in historical perspective, these rights are not significantly different from those that existed pre Work Choices but, in fact, they have been tempered by the privacy provisions and the penalties that are anticipated in these amendments—and that is a good thing in terms of getting that balance right.

I express my thanks to the government for agreeing to the amendment on the right of entry with respect to TCF outworkers, because I believe that is a different category and that the requirement for 24 hours notice ought to be waived. If you look at what the right of entry is supposed to do, it is to enable investigation of potential breaches. As for the outworkers provision, if you give the fly-by-night operators, the sweatshops—to use that term—or the backyard operators 24 hours notice, there will be nothing to see, nothing to investigate, no books and no records. That is why I think it is fundamentally important that, if we look at some of the most exploited and vulnerable workers, those TCF outworkers, there be an opportunity for a right of entry that is not contingent upon 24 hours notice. So I believe that is a fundamental improvement.

It would be anomalous indeed if this clause were not passed, because it would mean that outworkers would not have any real protection in terms of the benefits that would arise from a right of entry. I commend that to my colleagues, although I do not think I need to convince my colleagues in the Greens about those particular provisions. I think we have got an improved set of provisions in relation to the right of entry, taking into account the privacy considerations as set out by the Privacy Commissioner in the inquiry process, which was a very useful exercise. So I am hoping that this set of amendments will be passed.

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

The Greens will be supporting these amendments. We do not think they go far enough in respect to sweatshops, although we acknowledge that the amendment that Senator Xenophon has managed to persuade the government on is a step in the right direction. As we said in our minority report, we think parliament must use the opportunity presented by this bill to get regulation of the TCF industry and outworkers right. It has been an ongoing issue and I know that generally there has been cross-party recognition of the issues around the TCF industry and outworkers. We believe that parliament has acknowledged there do need to be special protections for these vulnerable workers. As I said earlier we are not satisfied the government amendments do what they need to do to ensure adequate protection of TCF outworkers and sweatshop workers.

The right of entry is a particularly important issue in the TCF industry, as has already been outlined by Senator Xenophon, with well-recognised compliance concerns. Unions must have the capacity to exercise appropriate right of entry in relation to outworkers and people working in sweatshops. We are particularly pleased to see in the revised sheet at amendments (21) to (23) that the government has removed, as Senator Xenophon has just said, the requirement for 24 hours notice for entry relating to TCF workers. The committee heard, again as Senator Xenophon articulated, a great deal of evidence about how the 24 hours notice requirement was inappropriate for TCF workers, where the setup can be very mobile and a notice period can often lead to a sweatshop no longer existing in the same place. However we are not convinced the government’s amendments adequately address the recommendations of the majority Senate report in relation to TCF workers. We put the government on notice that we will be keeping a very close eye on whether they do in fact move to address all the issues that were raised in the majority report, particularly in relation to sweatshops, and we expect to see all these outstanding issues resolved.

I also would like to refer to the amendments moved and passed on Tuesday night on sheet PV414, which also addressed the issues around outworkers. As I indicated, we are very supportive of the amendments as an attempt to deal with the important issues raised by the TCFUA over definitions and the protection of award provisions. However, again, we are not convinced that the amendments passed were, in fact, adequate and we are concerned to ensure that all relevant award conditions are protected. Similarly to the right of entry provisions, we will be keeping a close eye on the government to make sure all these outstanding issues are resolved. I would particularly like to mention and thank Asian Women at Work for the excellent evidence that they gave to the inquiry. I think that the issues they raised were particularly important and they gave very clear examples of why these sorts of provisions are absolutely essential. I indicate that the Greens will be supporting these amendments.

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

These amendments are extremely difficult for me. Some of the stories that we heard through the committee process cause concern. The question here though is one of balancing out power and how far it goes, and I am torn between both. I think in the end I am not going to support these amendments because I am worried about the power going too far with the unions. Maybe there is another way to solve this; I do not know. But I do know that tonight I feel uncomfortable with some of the powers here. I will probably have further discussions on this, but at this stage I do not feel comfortable supporting the amendments and I also feel uncomfortable knowing some of the stories that we heard through the committee process.

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

I might come in too, Senator Fielding. Having gone through the amendments, I think relatively carefully, we would be minded, as I indicated earlier in your absence—and no criticism of that; it is fully understood—

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

The numbers.

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

You would be supportive of them as well?

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

The numbers that you mentioned.

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

You would support those amendments?

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

Yes.

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

In those circumstances can I then indicate to the chair just for the procedure and for any other contribution that it looks as though there is agreement around the chamber in relation to amendments (10) to (16) inclusive, (30), (32), (33), (35) and (44). We will be seeking to divide on whatever the remaining amendments are.

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

I am disappointed that the opposition and Senator Fielding are not going to support all of the amendments. Senator Fielding indicated that he was concerned with some of the stories that he heard during the inquiry, and he should be. He should be concerned because this is an industry where there is massive exploitation. This Senate has looked at this issue over the last 20 years. There have been Senate inquiries, there has been legislation and there has been a lot of bipartisan work done by this Senate to try to address the exploitation that happens in this industry. But it has not worked. What we have done in the Senate up until now has not been enough. It is not because of a lack of effort from those who try to implement the basic fundamental laws that give these people protection from the exploitation. It is not through lack of effort; it is through a lack of legislation. It is through a lack of ability to rid this country of this severe exploitation and of those who wish to exploit this type of work.

The stories that we heard in the Senate inquiry are real stories; they are genuine stories; they are about the most vulnerable people—from non-English-speaking backgrounds, from lower socioeconomic groups. This is the only work many of these people can get, and the nature of this industry allows them to be exploited. We have a responsibility and an obligation as legislators to legislate to have a practical effect to end that exploitation. We can argue about the powers and whether they go too far. In the normal sense of things, that is the proper political debate that we have in this place, but when we know that there is exploitation going on, and that is not disputed, we have an obligation to fix it. If we have to go further in this particular industry than we do for any other industry, we should do so.

Senator Fielding, I would ask you to reconsider. If you think it has gone too far and if we find that, all of a sudden, outworkers are driving BMWs, wearing gold chains and buying multiple houses, I will come back in this place and say, ‘You’re right; we went too far,’ but I suspect, even with the amendments that the government proposes, there will still be massive exploitation. I am hopeful that these amendments, as a lot, will take us a large step forward in ending the exploitation which has been well known and well documented by the Senate. We have tried to legislate in a bipartisan way before to get a good result, but it has not been enough. We have to take the extra step, we have to go further, because I do not want the Asian Women at Work group, Fair Work Australia and all the people who have constantly come to the Senate committee process and told us their stories, inquiry after inquiry after inquiry, to keep coming back, telling us their stories and asking us why we have not been able to fix the problem.

I just want to emphasise again: it is not because of the lack of effort, commitment or dedication of those who care about that industry and try to fix it. You have met those people—you know how dedicated they were. It is because there is a lack of legislation and a lack of power to give those people the right to do those investigations, the right to just give those people the most basic, minimum standards. That is what we need to do. I ask you, Senator Fielding: reconsider and support the whole tranche of the government’s amendments.

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

I will follow on from the remarks of Senator Marshall. I indicate that Senator Fielding has managed to negotiate—if that is the right word—a number of very helpful changes in relation to the issue of privacy. The concerns that he and others had with respect to privacy, I think, have been fundamentally addressed—and I commend him for that—without in any way, I believe, undermining the integrity or the intention of the right of entry provisions. Now, generally, there will have to be 24 hours notice, and there are safeguards in getting the permit in the first place. You have to give the reason why you are going in and, also, Fair Work Australia has a supervisory role in relation to all this—the decision can be contested. But there is a fundamental difference. The point has just been made very well by my colleague: this particular industry is an exception. It is not like any other type of industry. We are not talking about premises where there is a sign out the front, where there is a registered office or where, for the purpose of the Income Tax Act and the Corporations Law, the liability is attached to a particular address. These are backyard operators; these are operators where there is no safety net. These are operators who can just pack up and go elsewhere with literally a few hours notice.

Senator Marshall talked about effectiveness and made a very good point: what is the point of passing a law unless it is going to have some teeth and be effective? I know that Senator Fielding, in his advocacy for the vulnerable in the community, has a genuine concern for people—families—who are vulnerable. This particular amendment will make it effective. There are still safeguards in the legislation with respect to being required to obtain a permit or being required to reasonably suspect that the contravention has occurred or is occurring. If it is abused, then there are inbuilt sanctions with Fair Work Australia. But, if we want to tackle the evil of exploitation of outworkers by backyard operators and sweatshops, then this is an important and fundamental reform in order to do it. With the greatest respect, I urge Senator Fielding to consider this and give this a go because it is an important reform in relation to some of the most vulnerable and exploited workers in the community.

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

I thank the minister for providing the assistance of the very long-suffering advisers from the government side, and there are those of the opposition and all around the chamber, including the staff of Senator Fielding, Senator Xenophon and the Greens, who have been assisting throughout this debate. On this particular point, the advice that we have received has convinced us that, in the list of the amendments we support, we should in fact be adding items (18) and (19), subject to a small amendment, which would be to delete at the end of item (19) the words ‘or TCF outworkers’. I indicate that that makes good procedural sense. I understand that the clerks might want me to do something.

Gary Humphries (ACT, Liberal Party) Share this | Link to this | Hansard source

Senator Abetz, would you care to move that amendment to government amendment (19) now?

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

In fact, if we do not reject the other amendments, then, of course, the words ‘or TCF outworkers’ should stand.

The Temporary Chairman:

We will return to this issue after we have dealt with the contentious amendments, I think, Senator Abetz.

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

One of the difficulties that we now have in the chamber is that these are broad provisions designed to assist the TCF industry. I may not agree with Senator Xenophon on all issues, but on this issue I do. It is an area where you do need special provisions to ensure that the legislation works effectively. To achieve that, you rebalance the scales. You cannot take what you might consider to be reasonable circumstances and apply them across the board because in this industry we know from long experience, from advice and from being told not only by employees but by the TCF industry unions themselves that employers in this area are not the best. They accept that these types of special powers are required to address some of the circumstances that vulnerable people will find themselves in.

That is the critical issue. It is about whether you accept that those people who are vulnerable in our society, the families that do the outwork—who are trying to do their best to find income and send their kids to school—deserve special measures. Our submission is that they do. We agree with Senator Xenophon that they do. It is about ensuring that they can provide for their families and their kids. It is about ensuring that the income they earn is reasonable for the work they do. In other words, it is a fair go for them too, because we know from long experience that they do not always get a fair go. That is not to condemn all outwork employers, but we know that at the bottom end of that market some very awful practices go on. For those areas we think the powers should be weighted a little bit more towards protection. This measure does not go as far as some might want it to go. What it does do is try to address the circumstances which TCF outworkers might find themselves in and try to bring those back a little and provide some fairness.

It is no wonder that those opposite do not want to support all of the provisions. I suspect they think that some of them go too far and are weighted more towards the employee than the employer. But I think Senator Xenophon has demonstrated in the debate tonight that he understands where the balance lies, and I would ask Senator Fielding to support all of the amendments so that we can achieve a reasonable balance. I understand that you may not want to, but I would ask you to reconsider.

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

I knew this debate was going to be long and tempers were going to be tried, and I can tell you that my temper right now is being very seriously tried. I can understand the coalition not accepting these amendments, but, I am sorry, I cannot understand Senator Fielding not getting this. These are so important to deliver fair outcomes for TCF workers—they really are very important. TCF workers are our most vulnerable workers. In the past there have been some differences of opinion, but, as I said when I first addressed these amendments, there has genuinely been really strong cross-party support for strong and fair TCF amendments. During the Senate inquiry the submissions contained story after story of abuses of outworkers. Progressively in Australia we have tightened our laws to offer protections to our most vulnerable workers.

As I also said earlier, these amendments do not go as far as we think they should go to protect TCF outworkers, but at least they put in place some protections. These are the workers that are most easily exploited because, as Senator Xenophon, Senator Ludwig and I have articulated, the sweatshops in particular are so easy to move. It is very hard to pin them down. During the inquiry process we heard stories that they do not even keep proper records of their employees or of the work that is done, so it is very hard to tell if the workers are being paid properly. The experience of a number of years has shown that, as a Senator Ludwig said, we need special protection for these workers. These provisions and this type of approach have developed over the years to ensure that we do give the best protection possible to these our most vulnerable workers.

As we heard during the committee inquiry, these people are often non-English speakers and they do not actually know what the laws are. They do not know what protections they have under Australian laws. They are easily exploited. Often, they have families to support and they are new arrivals in Australia. As I said, they do not necessarily understand the provisions or protections in our laws, and often they do not know who to go to for help. The committee heard incredible stories about some of the treatment they receive from their bosses. Senator Marshall will confirm the stories we were told about how some of these workers are treated. It is simply outrageous. As I said, they are the easiest to exploit. They are our most vulnerable workers. It is essential that we protect them.

I have said that the Greens do not think these amendments go far enough, but we are strongly supportive of them as far as they go. I seriously urge Senator Fielding to have another think about these amendments. They are the least that we can do to offer protections to these most vulnerable workers. If we do not pass them we will be condemning TCF workers and outworkers to exploitation, and of course that means their families are also affected. It is essential that we protect these workers and their families.

I remember one lady who came with the Asian Women at Work organisation to tell the committee her story. She was a clothing worker and told us how she and her daughter suffered because she was not getting adequate pay and was being required to make up pieces in totally unrealistic time frames. When she could not make those time frames she was being penalised. She and her daughter were essentially living in one room while she was trying to meet that totally unacceptable workload and was being unfairly treated. I cannot believe that in 2009 we do not think these amendments are absolutely essential to provide protection for TCF workers and for outworkers. I urge the coalition and Senator Fielding to please reconsider and support these amendments.

Progress reported.