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

I move:

That the Senate does not insist on the amendments that have been disagreed to.

The key issue under discussion today has been unfair dismissal arrangements. The government made a clear election commitment. The government acknowledges people of goodwill who are opposed to Work Choices. We note that Senator Fielding and Senator Xenophon have had concerns about the unfair dismissal arrangements—concerns that they have been very clear and consistent about. Senator Xenophon today raised with the government the prospect of an arrangement being for a three-year transitional period. Senator Xenophon also raised the need for specialist advice for small and medium-sized businesses to be available through the Office of the Fair Work Ombudsman, and the government agreed with him in relation to this. The government agreed today to Senator Xenophon’s request that the experience of employers, particularly small and medium-sized enterprises, and employees with the unfair dismissal system be the subject of a thorough and transparent review by Fair Work Australia in 2012.

Senator Fielding today raised with the government the prospect of the definition of ‘small business’ being resolved by calculation of less than 15 full-time equivalent employees rather than a headcount of full-time, part-time and regular and systematic casuals. Arising from these discussions, it was agreed with Senator Fielding as follows, confirming the government’s undertaking in respect of how a small business will be defined for the purposes of the unfair dismissal provision in the Fair Work Bill 2008:

The Government agrees to an amendment providing for a two-phase approach.

Until 1 January 2011, the threshold used to define a small business for the purpose of applying the unfair dismissal arrangement will be less than 15 full-time equivalent employees.

The number of full time equivalent employees is to be calculated on a straightforward basis by averaging the ordinary hours worked by all employees in the business over the 4 week period immediately prior to the employee’s termination, and dividing that by 38, being ordinary weekly hours.

From 1 January 2011, the threshold will be based on a simple headcount of employees as provided currently in the Fair Work Bill and detailed in Forward with Fairness, Labor’s election policy.

... the amendment to the small business definition will be progressed through the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 when it is debated before the Parliament.

The Government further agrees to amend the objects of the Fair Work Bill to acknowledge the special circumstances of small and is medium sized enterprises. This amendment will also be progressed through the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 when it is debated before the Parliament.

Furthermore, the Government agrees to establish a specialist information and assistance unit for small and medium sized enterprises within the Office of the Fair Work Ombudsman.

To that end I table the letter outlining the government’s agreement with Senator Fielding and I acknowledge that when the Senate debates the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 Senator Fielding will move the relevant amendments detailed in the letter.

I want on behalf of the government to publicly acknowledge the positive contribution of Senators Xenophon and Fielding in this process. I also want on behalf of the government to publicly acknowledge the constructive approach of the Australian Greens throughout this debate and their clear concern about the injustices which can occur for working Australians in the absence of fair unfair dismissal laws. What this shows is what can be achieved when people who are opposed to the disgraceful Work Choices laws and committed to fairness and balance in Australian workplaces work together. What has also been starkly revealed is the complete political humiliation of those who stood in the way of the Australian people—namely, the Liberal Party, the Work Choices party.

As we move to dispose of the bill, we find that the Liberals have not moved one constructive amendment and are now consigned to the political fringe, where their extreme workplace laws have always been. The Leader of the Opposition has been revealed to the Australian people as an opportunist. Just two weeks ago, on 5 March, he said:

… Work Choices is dead. We accept the verdict of the people at the last election.

Yet today he voted in the House to do the complete reverse, by supporting the continuation of Work Choices. This is a historic day as we rid the nation of Work Choices against the fierce opposition of the Liberals.

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

I indicate that the coalition will be voting that the Senate insist on its amendments. This morning the Senate, after showcasing itself as the very best in developing a compromise on complicated and potentially divisive issues, sensibly supported the third reading of the Fair Work Bill 2008 unopposed by any senator in this chamber. It is regrettable that some senators have now allowed the Deputy Prime Minister off the hook, the hook of her arrogance, that she herself had hooked herself up on.

Let us examine what Ms Gillard and Labor were refusing to accept. There were six amendments in all that can be distilled into three issues. The first issue—and this was in Senator Xenophon’s amendments—was whether a small business should be seen as being an enterprise of 20 or 15 employees. For the sake of a handful of employees in the definition of ‘small business’, Ms Gillard was foolishly going to hold back the repeal of Work Choices—a position she could not have maintained in the Australian community. Yet Family First and others have allowed her the big backdown, by them providing the backdown.

We have said to the Australian people that Work Choices is dead. They know it. That is why we voted the way we did in the early hours of this morning. Why was Ms Gillard so concerned to keep the definition of ‘small business’ at 15 rather than 20 employees? Because Ms Gillard had said so, despite the fact that the Australian Bureau of Statistics says that a ‘small business’ should be seen as 20 employees.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

It’s called keeping your election promises—you wouldn’t understand.

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

The Leader of the Government in the Senate foolishly interjects, forgetting completely that Ms Gillard’s proposals to this place had numerous breaches of Forward with Fairness in them. Indeed, she through her colleague introduced 50 pages of amendments to her own legislation. It seems that size really does matter for Ms Gillard—not in relation to the size of a small business but in relation to the size of her ego and her pride.

Senator Fielding is the architect of allowing that to go on unabated. I say to Senator Fielding that the very plight of job creation in this country and the very plight of small business that he was championing at 2.30 this morning is still the same plight that small business and Australian workers face at 4.50 pm this same day. Nothing has changed other than Senator Fielding’s resolve to defend job creation in Australia and small business.

We as a coalition said at all times that we would measure these provisions on a three-way test: what they did for small business; what they did for jobs; and whether they would mean excessive trade union power. Clearly, the diminution of the number impacts on jobs and small business. But let us do away with this nonsense of the mandate—the mandate is looking very shabby when the government itself moves amendments to its own legislation so that it can countermand its own policies, which it has done on numerous occasions. It made good sense when they did so, but they cannot cherry-pick the mandate argument when and as it suits them.

Let us move to the other issue, which is the fifth amendment or the second issue. That relates to independent contractors. Ms Gillard and the Labor Party were willing to hold up the complete repeal of Work Choices on the basis that the Senate wisely made an amendment making it unlawful to include in an enterprise agreement, amongst other things, items that had placed restrictions on the use of independent contractors. A great protection for independent contractors was introduced through this Senate into the legislation. I am yet to see the letter and I am yet to see whether independent contractors have been sold out as well. No mandate argument on that; they did not even take the issue of independent contractors in that regard to the election.

Nor did they in relation to the sixth amendment and the third issue, which related simply to the definition of enterprise level. We said to make it perfectly clear the legislation should say enterprise level or workplace level. And the minister at the table said that there was no need for that because enterprise level included workplace level. So we said, ‘So if the worst is that we are putting belts and braces on this, we will keep on with it.’ And now all of a sudden this amendment, because of Ms Gillard’s pride, should stand in the way of the repeal of Work Choices. Those that campaigned against Work Choices would be shaking their heads this evening at the evening news if they were to hear that Ms Gillard’s silly pride has stood in the way of the complete rollback of Work Choices. Instead, we had a situation of Senator Fielding and Senator Xenophon agreeing and repudiating the arguments they put in this place less than 24 hours ago in relation to some of the issues. I said Senator Xenophon—I withdraw that; I should say Senator Fielding only. I apologise for that. I was looking in that direction and I apologise to Senator Xenophon.

One of the other great ironies of this debate was when we dealt with the issue of superannuation. Senator Sherry banged on in this place about the evil of secret deals; that there was a need for transparency. When we amended this legislation in this place, in full vision of the Australian people, bouncing ideas off each other, in the full and in the open, the government rejected it. They then go behind closed doors, do a deal, the full details of which we will never know, and come back and say that this is allegedly the will of the Australian people.

If it was such a good deal, why could it not have been struck in the Australian Senate by Australian senators during the debate on this legislation? Why did the government and Senator Fielding have to go behind closed doors to make such a deal? I say to the Australian people that the compromise that the Senate achieved last night was one of the best moments in the Senate’s history, dealing with a complicated and divisive issue. Instead, Senator Fielding has done a deal behind the scenes to undo that compromise, the full details of which we will never know.

I will not delay the Senate for long, other than to say that we measured these amendments and this legislation on three criteria: impact on jobs, impact on small business and impact on increased trade union power. We believed that the compromise, which meant a lot of compromise right around the chamber, had struck the right deal. That is why, as the champions of job creation and as the champions of small business in this country, we will be insisting on the very wise amendments that the Senate made last night.

But for Senator Fielding, the Deputy Prime Minister, Ms Gillard, would have so overcooked the egg by her arrogance, so overacted in relation to this matter, that she would have been in very real danger of losing her audience, the Australian people. She knew it, and that is why the government were so desperate to strike a deal. That is what they did. That is why they caved in. Senator Fielding will now get a headline other than alcopops. Good luck to him.

But when we leave this place tonight, every single coalition senator will know that he and she voted for jobs and small business, knowing that small business is the engine room of jobs in this country. We will be able to leave this place and say at the next election that we defended jobs and small business with pride and with commitment. When it comes to these issues in the future, there is only one group of senators that will defend them—that is, the coalition, the Liberal and National parties. We unashamedly support the amendments carried by the Senate less than 24 hours ago.

Honourable Senators:

Honourable senators interjecting—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Could I remind senators on my right that interjecting across the chamber is disorderly. I would ask you to extend the same courtesy to other senators as you would like for yourself.

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

In the wee hours of this morning I warned in this place that for the opposition to have its way with crossbench numbers to obstruct this legislation could lead to a potential double dissolution election. That will not now happen, even though the opposition has been left irrelevant to the further proceedings in the Senate. I made clear last night that the question was whether, for the purpose of this legislation, small business should be an enterprise of 20 or 15 employees. In fact, 500,000 employees in Australia fit between those definitions. The Greens were rock solid with the government that the definition—

Honourable Senators:

Honourable senators interjecting—

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

Yes, absolutely. We were absolutely in defence of those 500,000—

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

Order! Senator Brown, please ignore the interjections. I understand there is a great deal of spirit in this debate, but interjecting across the chamber is disorderly. I cannot hear Senator Bob Brown.

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

The Greens were rock-solid, as was the government—and I commend the Deputy Prime Minister and my colleague Senator Rachel Siewert—that small business should be defined as 15 employees. My colleagues on the crossbench Senator Xenophon and Senator Fielding insisted along with the coalition it should be 20. What has changed here today is that my colleagues Senator Xenophon and Senator Fielding have given way on their stand on 20 and agreed with the Greens and with the government that it should be 15. That is the salient difference between last night and tonight. And I congratulate my fellow cross-benchers on having made that determination because with it comes a raft of very important gains for workers in Australia.

The government went to the election on its Fair Work legislation. Today, if the vote we are going to see in the next hour or so comes as expected, we will see fulfilled the vote of the people in 2007 which put the Howard government out of office over Work Choices and brought the Rudd government into office over Fair Work. That was a mandate and that is what the people will get. The definition for small business relating to unfair dismissal laws will stand at 15. It will stand at 15 because the Greens were not prepared to relent on that and nor were the government.

The Greens were also insistent—and I have a letter from the Deputy Prime Minister, which I will table shortly—that the Senate amendment seeking to restrict the content of enterprise agreements in relation to independent contractors not stand. We did not want to see workers undercut by arrangements with contractors. The government also agrees to discuss with the Greens refinements that can be made to the small business dismissal code which will make it clearer that the employer is required to provide evidence that a warning has been given. Very importantly the government has also supported the proposal put by the Greens to extend the time limit for lodging unfair dismissal applications from seven days to 14.

I have a list of amendments which the Greens have been able to negotiate—again and again I have to congratulate Senator Siewert and the Deputy Prime Minister, and now the Senate, for this outcome. They are: new provisions for flexible work for carers of children with disabilities—so there should be; a review by Fair Work Australia of the right to request flexible work—that is an important provision; an interim review by Fair Work Australia of modern awards; and a provision to support employment law services in Australia so that people who believe they have been treated wrongly will have access to legal backup. On the matter of pay equity, the House of Representatives Standing Committee on Employment and Workplace Relations is currently conducting an inquiry and the government agrees to consult with the Greens in respect of the committee’s considerations. The government also agreed that the Fair Work Ombudsman will prepare a guide on pay equity issues as part of the new functions to be detailed in the government’s amendments to the bill. And the conscientious objection certificates, which gave the Exclusive Brethren sect specific provision to be able to exclude unions from their workplaces—and it was their workplaces only—have now been removed from the legislation.

I want to commend Senator Xenophon, Senator Fielding and Senator Siewert for the flexibility they have shown that has allowed this outcome through working together. The coalition is left out of this at this stage. Also I want to commend the Hon. Julia Gillard, the Deputy Prime Minister. We have found working with her in this last period to be constructive, to be direct, to be honest, to be forthright and ultimately to have made this agreement possible.

But, finally, I want to say this to the workers and the voters of Australia: you made your feelings known in 2007; this government has stuck to its guns, and so have the Greens. This outcome will benefit working Australians and Australian working families. That is the ultimate test. It would have been an appalling thing for the opposition to have had its way and for people to be forced back to the polls again on the very matter they determined in November 2007. The common sense of the Senate has prevailed, and this is a much better outcome for the people of Australia.

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

Family First has brokered a deal with the Rudd government that finally buries Work Choices. Family First and the Rudd government have agreed to the definition of a small business as one with up to15 full-time workers, with a review in 2011. Family First supports the Fair Work Bill as it strengthens protection and fairness for workers and small business.

It is a matter of fact that Family First voted against Work Choices, because it was a dog. It was a dog that bit Australians harshly. We voted against Work Choices, and it is about time that we buried Work Choices forever. Family First has brokered a deal to ensure that Work Choices is dead forever. This is extremely important. You have got to remember that the last election was fought on Work Choices and the environment. Australians voted and they wanted Work Choices dead and buried. The Senate will today deliver that final burial to Work Choices.

The Fair Work Bill does strike a balance between workers and small business, and it does strengthen both of them. The unfair dismissal laws were previously too harsh under Work Choices. We made that quite clear. When Work Choices was being rammed through the Senate, I went to the previous Prime Minister with 10 changes. I walked out the door after seeing the Prime Minister with zero. Do you know what? If he had adopted five of those 10, the coalition could still be in power today. But, no, they abused the Senate process.

The Senate is the house of review and it has done its job. It has struck a balance and a compromise that will actually benefit Australia in these tough financial times. This is not the time to muck around and play politics with the Australian people on workplace laws; I can tell you, it is not. These changes are important, and Family First support the Fair Work Bill with the changes that have been made over the last couple of days.

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

If I can just clarify my position so that there is no ambiguity with respect to it, last night, from my perspective, Work Choices was killed off by the Senate; today it is a case of burying it. But last night amendments were moved—and that is the subject of this debate now, that these amendments be agreed to—and the fundamental point of difference was in relation to the definition of a small business. The amendment that was agreed to was 24 full-time equivalent employees. In the spirit of compromise, there were further discussions with the government, and I think the opposition knows, the Greens know and Senator Fielding knows that I was absolutely transparent in relation to that.

I do want to pay tribute to the Deputy Prime Minister, the Hon. Julia Gillard, because, whatever her opponents may say about her, she has been a consummate professional in all her dealings with me and my office in this, absolutely straightforward and upfront with me, and I appreciate that. My dealings with the opposition and Michael Keenan have similarly been very constructive.

My position has been that I was concerned about small business being able to get some more time in these difficult times in order to adjust to the government’s proposed position. I understand that the government went to the people on 15 employees and so they have argued the issue of mandate. But, for me, the difficulty has been that times have changed since the election. We now have a much more difficult economic situation and the psychology of small business has been battered by the global financial crisis. We have a situation where small businesses are deeply concerned about hiring people. Even today on talkback radio there were people ringing in saying, ‘We’re going to sack a couple of people to get below the threshold.’ That is foolish, and it is the wrong thing to do, but that is the sort of perception we are dealing with.

Essentially, my position to the government was to have a transitional period of three years of 15 full-time equivalent employees so that we could have that time during this financial crisis for small businesses to adjust. That is my key point of difference, and it is not a criticism of Senator Brown, because he was not aware of the full story. It has never been my position that this much shortened transitional period is acceptable, so I cannot accept that. But can I say that I do wish to look at the positives as well. The government’s decision to establish a specialist information assistance unit for small- and medium-sized enterprises within the Office of the Fair Work Ombudsman is a significant change. It is a good thing in that it will ensure that small businesses can have access to specialist advice where there is a dispute. That is a good thing for small businesses. It is also good that there will be a thorough and transparent review of the system in 2012. I would have preferred that there be an independent person conducting that review.

Nevertheless, the key point of difference is that there ought to have been a longer transition period. We could have done better for small businesses in this country in these difficult times. I am unfortunately in the position that I believe we ought to insist on these amendments because we could have done better for small businesses. But, having said that, it seems the deal has been done. I look forward to us doing the best that we can to give confidence to small businesses to continue to employ as many Australians as possible.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the motion moved by the minister be agreed to.

Question put.

Cory Bernardi (SA, Liberal Party) Share this | Link to this | Hansard source

The ayes and the noes being equal, the amendments are not insisted upon. As has been explained on previous such occasions, the reason for this is that the amendments required a majority to be carried in the first instance, and the equally divided votes on the question of whether the Senate should insist on its amendments indicates that there is now not a majority in support of the amendments.

Resolution reported; report adopted.

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

I am wondering where my hug from the Deputy Prime Minister is.