Jonathon Duniam (Tasmania, Liberal Party, Assistant Minister for Forestry and Fisheries) Share this | Link to this | Hansard source

I table a revised explanatory memorandum relating to the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021 and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

FAIR WORK AMENDMENT (SUPPORTING AUSTRALIA'S JOBS AND ECONOMIC RECOVERY) BILL 2020

COVID-19 has caused a health crisis in Australia that has triggered an economic crisis. At the height of the pandemic, 1.3 million people lost their jobs or were stood down on zero hours. The government is committed to putting Australia on the road to economic recovery and prosperity.

Australians have shown tremendous spirit and resilience during these testing times. But we are at a critical point in our recovery. As we navigate our way out of this COVID-19 induced economic crisis, it will be our ability to solve complex problems, working in partnership, that will drive us forward, create jobs and get Australians back to work. There is no room for policy stalemates.

That is why the government brought together unions, employer groups and experts through the industrial relations working group process—with one simple goal, that being to create jobs.

I am very pleased today to be introducing the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill to help Australia's recovery from COVID-19 by supporting productivity, jobs and economic growth. These reforms address known problems in the industrial relations system and will be crucial to securing Australia's economic recovery and safeguarding the workplace for future generations.

This bill is not ideologically based; rather, it is founded on a series of practical, incremental solutions to key issues that are known barriers to creating jobs.

They are balanced and pragmatic and seek to create a fair and efficient industrial relations framework for all Australians. I'll turn to the various schedules in the bill in turn.

Casuals and fixed terms

The first is with respect to casuals and fixed term employees. It is clear that the current state of the law in relation to casual employment has caused widespread mistakes and confusion for employers and employees, which, with the associated consequences and costs, gives rise to the genuine need for legislation to adjust the rights, claims and obligations of these employers and employees.

The statutory definition introduced in this bill incorporates key aspects of the common law as expressed in recent court decisions such as Skene and Rossato, particularly the absence of a firm advance commitment to ongoing work defining casual work.This ensures casual jobs are genuinely casual. The nature of the employment, whether casual or ongoing, will be determined at the outset, as opposed to relying on periodic assessments of the relationship as it develops over time. This will provide much-needed certainty to business, who currently have a significant potential liability hanging over their heads and are being disincentivised to hire new employees.

The bill also introduces a new entitlement to be included under the National Employment Standards, or NES, for eligible regular casual employees to convert to full-time or part-time employment—if they choose to do so. The new NES entitlement introduces a positive obligation on employers to offer conversion. As a NES entitlement, it will form part of the statutory safety net that cannot be traded away.

Clearly employees should be characterised appropriately and receive the entitlements reflecting that characterisation at law. However, the absence of a clear and certain statutory definition has led to the potential for employers to have to pay for the same entitlements twice. In order to address this, the bill introduces a statutory offset mechanism so that employers will not have to pay twice for the same entitlements.

Without this suite of casuals amendments, costly and time-intensive court processes would be needed to determine the appropriate rights and obligations of employees and employers in every individual case, imposing significant burdens. Together, these measures relating to casual employment form a package of reforms to address those issues.

Award simplification

With respect to award simplification, it is the case presently that award complexity is a significant issue for many businesses, especially small businesses. Time that businesses spend navigating the overly complex awards system—and its often convoluted processes—is time that businesses don't spend growing or creating jobs. It is critical that in the industries hit hard by COVID-19, namely the hospitality and retail industries, the government works to make it as simple as possible for business to regrow jobs.

Combined with non-legislative measures, including investment in regulatory technology solutions and award variations to be determined by the Fair Work Commission, this bill adapts specific elements of our successful COVID-19 JobKeeper flexibilities for employers and employees covered by 12 identified awards in distressed industries for a further two years. These flexibilities, which have already helped to save thousands of jobs during the pandemic, will allow employers and employees to continue to work together regarding their duties and work location to navigate the challenges of working in a post-COVID world.

Importantly, the bill also legislates increased access to part-time flexibility across the same 12 awards, allowing part-time employers and employees to work together so an employee can take on additional hours when it suits them. This vital flexibility—a genuine two-way flexibility—will be subject to strong safeguards and is expected to ensure more employees have more opportunity to work more hours in a permanent form of employment.

Agreement - making

With regard to agreement-making, if there is one aspect of the current industrial relations system for which the problems are most acute it is the enterprise bargaining system.

Recent trends show that enterprise bargaining has experienced a significant decline since 2010—there are fewer employees covered by enterprise agreements and few new enterprise agreements being made. Over the last 10 years, the number of current enterprise agreements between employers and employees has been steadily declining: from 25,150 at 31 December 2010 to 10,711 at 30 June 2020, a fall of 57½ per cent.

According to the Australian Bureau of Statistics, this has translated to the proportion of employees being covered by enterprise agreements decreasing from its historical peak of 43 ½ per cent in 2010 to 37.9 per cent in 2018, with a corresponding increase in the direct reliance on modern awards.

This bill aims to increase the number of Australians covered by enterprise agreements—and the productivity and wage benefits they can entail—by making agreement-making and approval processes easier and faster for employers and employees, while ensuring a better balance between flexibility and fairness.

The bill will reduce the level of prescription currently imposed by the Fair Work Act and provide greater flexibility as to the methods by which employees may be provided with a fair and reasonable opportunity to consider whether to approve an enterprise agreement prior to the vote. The Fair Work Commission will be required to listen to the views of the bargaining parties in the approval process, and the intervention by other persons before the Fair Work Commission will be limited.

The bill also places greater emphasis on the importance of cooperative working relationships and places stricter requirements on the Fair Work Commission to listen to the views of the employer and employees on the Better Off Overall Test (BOOT). In applying the BOOT the Fair Work Commission will be required to consider the patterns or kinds of work that employees currently perform or could reasonably be foreseen to perform.

Greenfields agreements

The construction of major projects in Australia contributes significantly to jobs and economic growth around Australia. The risk of agreements nominally expiring during construction of a major project has contributed to uncertainty, including over unexpected delays and protracted negotiations. This uncertainty can impact investment and job creation, both of which will be key in coming years as part of our economic recovery.

The bill will double the maximum nominal expiry date for greenfields agreements made in relation to the construction of major projects, from four years to up to eight years. The bill requires longer-term greenfields agreements to include annual wage increases for employees over the nominal life of the agreement.

This will support Australia's economic recovery by attracting investment and driving job growth.

Compliance and enforcement

When it comes to compliance and enforcement, the amendments in the bill are designed to do three things: help businesses comply with the law, enable employees to recover any underpayments faster where they do occur, and ensure that the maximum penalties for noncompliance are proportionate and a meaningful deterrence from the full spectrum of wrongdoing.

The government is committed to supporting businesses, including small businesses, understand their workplace obligations, improve compliance and identify and resolve any issues early.

That is why, as part of our industrial relations reform package, we are providing $12.9 million to establish an Employer Advisory Service in the Fair Work Ombudsman, commencing from 1 July 2021, that will offer employers authoritative, written advice tailored to their individual circumstances. The service will provide small businesses with greater certainty about how to apply award and agreement provisions, reducing the likelihood of wage underpayments occurring in the first place.

Additionally, the bill will require the Fair Work Ombudsman and the Australian Building and Construction Commission to publish information about when they will commence and defer commencing litigation for underpayment matters. This will give employers certainty and the confidence to proactively identify, self-disclose and rectify underpayments quickly.

The bill will allow more underpaid employees to get repaid faster. With the confidence to rely on public policies issued by the regulators, which specify when they will commence and defer litigation for underpayments breaches, businesses will be encouraged to self-identify and self-report underpayment breaches. The bill will also make it easier and faster for employees to recover unpaid wages by increasing the small claims cap from $20,000 to $50,000; courts will also be able to refer small claims matters to the Fair Work Commission for conciliation; and parties can consent to arbitration by the Fair Work Commission if conciliation is unsuccessful.

To respond to exploitation and better deter noncompliance, the bill introduces a new criminal offence for dishonestly engaging in systematic wage underpayments, and increases the value and scope of civil penalties and orders that can be imposed for noncompliance. Courts will be able to impose adverse publicity orders on businesses that underpay, and directors convicted of the criminal offence will be disqualified.

The bill also provides further protection to employees by prohibiting businesses publishing job advertisements with pay rates below the minimum wage, and increases the penalty for sham contracting used by employers to avoid paying full entitlements.

These amendments will help businesses comply with the law, promote fair competition by ensuring that businesses who are non-compliant do not gain unfair advantage, and protect employees from exploitation.

Improvements to Fair Work Commission processes

The bill also includes amendments that will enable the Fair Work Commission to deal with certain matters more efficiently and expeditiously than is currently permitted under the act.

The bill will give the commission appropriate powers to be able to deal with vexatious applications more effectively, modelled on the Administrative Appeals Tribunal's powers to deal with vexatious applications.

The bill will also confer greater discretion on the commission to decide to deal with an appeal 'on the papers' when it considers a hearing to be unnecessary.

These amendments support the Fair Work Act's requirement that the commission perform its functions and exercise its powers in a manner that is fair, just, quick, informal, open, transparent and avoids unnecessary technicalities.

Conclusion

COVID has challenged many aspects of Australian life and this bill delivers on the government's commitment to put Australia on the road to economic recovery. This bill removes barriers that stifle the job growth of today and limits the job creation of tomorrow—if we want Australians to have access to the prosperous jobs they aspire to we must remove these barriers today. That is what this bill does.

REGULATORY POWERS (STANDARDISATION REFORM) BILL 2020

The Regulatory Powers (Standardisation Reform) Bill 2020 represents the second coordinated tranche of amendments to Commonwealth Acts to trigger the operation of the Regulatory Powers (Standard Provisions) Act 2014.

Background

The Regulatory Powers Act provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as provisions regulating the use of civil penalties, infringement notices, enforceable undertakings and injunctions.

That Act commenced on 1 October 2014, but only has effect where Commonwealth Acts are drafted or amended to trigger the standard provisions.

By standardising regulatory powers across the Commonwealth, the Act is intended to:

The Regulatory Powers Act also ensures that Commonwealth regulatory powers are sufficiently certain and predictable, while being flexible, to ensure that agencies with specialised functions can operate effectively. The standard provisions of the Regulatory Powers Act represent best practice in relation to regulatory powers of general application.

The first standardisation reform Act, the Regulatory Powers (Standardisation Reform) Act 2017, amended 15 Commonwealth Acts to repeal existing provisions providing for regulatory regimes and instead apply the standard provisions of the Regulatory Powers Act. Since then a number of Acts have also independently triggered the Regulatory Powers Act's standard provisions.

Details of the amendments

This Bill amends six Acts to trigger the standard provisions of the Regulatory Powers Act. Amendments to the Education Services for Overseas Students Act 2000, the Fisheries Management Act1991 and the Tertiary Education Quality and Standards Agency Act 2011 will move existing bespoke regulatory regimes to the standard provisions to align with best practice regulatory powers. Amendments to the Defence Force Discipline Act 1982, the Tobacco Advertising Prohibition Act 1992 and the Tobacco Plain Packaging Act 2011 will trigger the Regulatory Powers Act to expand their regulatory powers and provide a more robust compliance and graduated enforcement scheme. Amendments to provide these Acts with standard regulatory powers will support the Acts' overarching policy objectives, including the reduction of smoking rates, the management of fisheries resources and the integrity of educational services.

Alignment with the Regulatory Powers Act also provides an opportunity to consider whether existing regulatory powers or functions are still relevant and appropriate. Accordingly, the Bill will either repeal or narrow existing regulatory provisions that do not have equivalent provisions in the Regulatory Powers Act on the basis that those existing provisions are no longer required or required in their current form. In addition, limited modifications to the standard provisions will be made to some of the Acts to tailor the standard provisions to the regulatory context of each Act.

Amendments to the Regulatory Powers Act

The Bill will also make minor amendments to the Regulatory Powers Act to ensure that the regulatory requirements and underlying penalty and offence provisions of Acts that trigger the Regulatory Powers Act can be effectively enforced.

Those amendments would:

Conclusion

Implementing the Regulatory Powers Act supports the Government's regulatory reform agenda, as that Act intends to simplify and streamline Commonwealth regulatory powers across the statute book which currently vary in breadth and detail, resulting in inconsistency or unnecessary duplication across regimes.

Standardisation provides regulatory agencies with the opportunity to use more uniform powers, and increase legal certainty for businesses and individuals who are subject to those powers. The use of the standard provisions ensures that the government exercises regulatory powers responsibly and with accountability so that the rights of individuals and businesses remain protected.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.