Raff Ciccone (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

The committee is considering this bill and amendment (1) on sheet 3408 moved by Senator Kovacic.

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

We're up to the beginning of volume 2, Minister Watt, so we won't be too much longer—just kidding. I'm going to sum up and we'll be done. The coalition supports penalty and overtime rates and the mechanism that they provide for additional remuneration for employees who work overtime, for employees who work weekends, for employees who work, what we call, unsocial or irregular or unpredictable hours. The coalition also supports the agency and freedom of employees to negotiate with employers, in good faith, terms and conditions that suit their respective needs, priorities and interests, and these are not 'one size fits all'.

At a time when Australia's productivity continues to decline and when the burden of excessive regulation has been recognised by the government as contributing to Australia's problematic economic performance, our problematic productivity, these new regulations and imposts on small businesses, in particular, should give us cause to pause and carefully assess and weigh things up. Following the Senate inquiry into this legislation, the evidence provided a clear divide between the submissions that support the bill as a symbolic protection of penalty rates, from the union movement, and business and legal experts, who warn that there may well be some unintended consequences here, including compromising the independence of the Fair Work Commission, impacts on flexibility and choice, and duplication. Coalition senators remain concerned, as noted in our dissenting report, that in its current form the bill does not achieve, in a practical sense, the government's stated intent of safeguarding penalty rates. It is important that we point that out, because that is the very purpose of the Senate committee process, of the scrutiny of that process—to consider and assess proposed legislation and to point out to government any potential issues to ensure that the laws that leave this place are fit for purpose and do the job that they are meant to do. Rather, we believe that this legislation risks creating additional challenges for business whilst limiting employees' ability to make arrangements that best suit their own circumstances. We coalition senators once again affirm our support for penalty rates and overtime for those that work unsociable hours.

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

Thank you, Senator, for your contribution in this debate. I think it's worth my putting on the record a couple of points to address matters that were raised in the debate yesterday. It is very clear from the debate that we've seen over the last few hours that the Liberal Party just doesn't support penalty rates. They say they do, but actions speak louder than words.

The main reason I want to make this contribution today is to clarify some matters that have been reported in the media today. We have seen some members of the opposition—no-one in this chamber—seek to misrepresent what this bill is about and also to misrepresent comments that I made in the chamber yesterday, so I think it's worth putting on the record what will actually occur as a result of this bill.

Existing award arrangements will not be overridden by this bill. This bill is not retrospective in its operation, despite the claims from some that it is. The bill applies a simple new principle to award variation applications made by unions or employers from the time the bill commences. It's not going to be making changes that apply retrospectively, like most pieces of legislation; it will take effect from the time the bill commences, and the matters contained in the bill will take effect from the time the bill commences. That is a future date—most likely, I'm guessing, the date of royal assent. These provisions will not be applied retrospectively. When I say that it will apply a new principle to applications made by unions or employers, that includes applications that are not yet determined by the Fair Work Commission at the time the bill commences, such as those in the retail, banking and clerks award cases, as well as future applications made by parties.

This new principle will, very simply, prevent the reduction of a penalty rate—for example, from 200 per cent of the base rate of pay to 150 per cent of the base rate of pay—and prevent the Fair Work Commission making exemption rates or rolled-up rates that do not properly compensate employees for the penalty and overtime rates they have forgone. The new principle applies to awards only, not individual flexibility agreements or enterprise bargaining agreements. Employers and unions have a longstanding right to be able to apply to vary awards in line with the law of the day. The bill does not change this. The opposition and employer groups seem to be claiming that the fact that we have not taken away this fundamental feature of the award system makes the bill retrospective in its operation. This is simply incorrect. Employees who have existing rolled up rates under awards or agreements will continue to be paid those rates after this bill commences. Despite claims to the contrary, we have not removed flexibility from awards. Employers will still be able to apply to the Fair Work Commission to vary awards and to include flexible exemption rates and rolled up rates. All that changes is that the Fair Work Commission must ensure the amount the employee is paid under that exemption rate or rolled-up rate properly covers the penalty rates and overtime rates that they would otherwise have received. We have also not amended the provisions in the Fair Work Act that relate to annualised wage arrangements. Annualised wage arrangements will still be permitted under awards. This bill does not impose any new obligations on employers, and therefore no impact assessment is necessary. Of course we will monitor the operation and implementation of this new principle in the same way we monitor the operation and implementation of all new workplace relations provisions.

As I said yesterday and as I said during the election when we made this commitment, this is a commitment from the Albanese Labor government to ensure that penalty rates cannot be cut and that workers can't go backwards under awards compared to where they stand at the moment. I commend the bill to the chamber.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 3408, moved by Senator Kovacic, be agreed to.

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

() (): by leave—I move:

(1) Schedule 1, item 1, page 3 (line 9), after "employees", insert "(other than employees of small business employers)".

(2) Schedule 1, item 1, page 3 (line 15), after "any employee", insert "(other than any employee of a small business employer)".

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

Are there any further contributions? Otherwise, I'll put the question. The question is that amendments (1) and (2) on sheet 3409 be agreed to.

Maria Kovacic (NSW, Liberal Party, Shadow Assistant Minister to the Leader of the Opposition) Share this | Link to this | Hansard source

I move:

(1) Schedule 1, page 4 (after line 6), at the end of the Schedule, add:

3 Regulation impact statement

(1) The Minister must cause a regulation impact statement to be prepared in relation to the operation of the amendments made by this Act.

(2) The persons preparing the regulation impact statement must complete it within 6 months after this Act commences.

(3) The persons preparing the regulation impact statement must give the Minister a copy of the statement.

(4) The Minister must cause a copy of the regulation impact statement to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives a copy of the statement.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendment (1) on sheet 3410 be agreed to.

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

by leave—I move:

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

(2) Page 4 (after line 7), at the end of the Bill, add:

Schedule 3 — Requests for flexible working arrangements

Fair Work Act 2009

1 Subsections 65(1) and (1A)

Repeal the subsections, substitute:

Employee may request change in working arrangements

(1) If an employee would like to change his or her working arrangements then the employee may request the employer for a change in working arrangements.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

2 Subsection 65A(1)

Omit "relating to circumstances that apply to the employee".

3 Subparagraph 65A(3)(a)(ii)

Omit "the circumstances mentioned in subsection (1)", substitute "the request".

4 Subparagraph 65A(6)(c)(i)

Omit "the circumstances mentioned in subsection (1)", substitute "the request".

5 Paragraph 65B(1)(a)

Omit "relating to circumstances that apply to the employee".

6 Subparagraph 65C(1)(f)(ii)

Omit "the circumstances mentioned in paragraph 65B(1)(a)", substitute "the request".

7 In the appropriate position in Schedule 1

Insert:

Part 21 — Amendments made by Schedule 3 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025

129 Application of amendments

The amendments made by Schedule 3 to the Fair Work Amendment (Protecting Penalty and Overtime Rates) Act 2025 apply in relation to a request for a change in working arrangements under subsection 65(1) made on or after the commencement of that Schedule.

This bill, as it stands, is defensive. It defends something really important—penalty and overtime rates. We know that millions of Australian workers depend on these to put food on their table, and they deserve these rates. The Greens will never stand in the way of workers' rights and increases in their pay, but work is changing. The worker is changing, the workplace is changing, and what we do at work and where we do it are changing. That means we need some ambition in our workplace laws to deal with these changes and we need more ambition from Labor.

Yesterday, Labor voted down a reasonable right to request work from home for up to two days a week. We know from polls in the last two weeks that 75 per cent of Labor voters support a right to work from home and 51 per cent of coalition voters support a right to work from home. Two-thirds of all Australians want this right. They know they need it, and they want to see it in their workplaces. The Victorian Premier is doing it, and the PM has backed her in.

This week, workers in small businesses joined other workers across our country in a right to disconnect. Now all workers across the nation have an important new right, a sensible right—a right to step away from the intrusive effects of an employer who wants them on the phone on a Sunday morning. It makes their lives better, and the sky has not fallen with a right to disconnect. That came about because the Select Committee on Work and Care recommended that right with a lot of agreement across this chamber, we pushed a private members' bill and kept pushing, and, with the support of Tony Burke, we got a right to disconnect up. It was legislated. It's a great success, and a success, as we know—we have heard it many times in this chamber—has many parents; everyone wants to claim it. But the point here is this that a good thing for workers was achieved by this chamber putting workers first.

Yesterday, when Labor voted down a right to work from home, they put politics ahead of workers. They said as much. They said they wouldn't act 'at the behest of the Greens'. You can read it in the Financial Review this morning. That's putting your politics ahead of the interests of those you represent, of workers. Labor knocked back a simple, reasonable right to work from home, not because it isn't needed, not because it isn't wanted, not because it can't be done—it can be done, and it is needed and wanted—but because of politics, because it's our idea. That's putting politics ahead of what's good for workers. That's hubris. That's political pride. That's letting your political hatred get in front of what's good for workers.

Labor had the biggest majority in the other house in my lifetime, and we Greens are here in the Senate to support progressive change. Instead, they've knocked back a right to work from home, and they've knocked back something that would make a difference right now to so many women and men. With these amendments I move today, Labor gets to show whether they are here to put workers ahead of politics. These amendments I now move give Labor the chance to show whether it is in here for workers or is it in here for political advantage. Anyone who knows Labor's history knows how important the Labor Party has been for workers' rights across past centuries. Where are you now? Here is your chance to help all women and men workers across our country who are looking for increased flexibility to put their lives together.

These amendments make it a right for all Australian workers—not just those with a school-age child, not just carers, but anyone—looking for flexibility to ask for it. They can ask. They have a right to get a timely written response from their boss. They have limited ways in which they can be refused, and they have access to the right to contest an unreasonable refusal. Our amendments open up eligibility to ask for flexibility to every worker, to have the right to ask and the chance to be treated decently and have backup when they make that request.

We know that flexible work delivers enormous benefits. It helps people balance their jobs and study. It helps people look after their health, mental and physical. It helps people have a community life. It boosts workplace participation for both women and men. It helps men be more involved in their households. The evidence shows that it increases productivity. It reduces commuting time, with less carbon in our environment, and it improves wellbeing. It is good for women, it is good for men, it is good for kids and it is good for families.

This is about fairness. Flexibility should not be a privilege reserved to a particular group of people, such as carers and people with school-age kids. The truth is: workers' lives across the board do not fit neatly into narrow boxes, as set out in our current law. Of course, requests still need to be reasonable. Employers retain the ability to refuse requests on legitimate business grounds. What this change does is ensure that every worker can ask, and employers must properly consider their requests.

The world of work has changed. Technology has made remote and flexible work not only possible but, in many workplaces, utterly normal. The law should catch up with that reality and make sure every worker has the right to request arrangements that suit their lives. And, yes, this is a Greens proposal. These are Greens amendments, but this is a chance for Labor to do the right thing by workers rather than play politics just because you don't like the Greens or just because you haven't been the first to bring it up in this chamber. That's no reason to knock back such an important right that so many Australian men and women want more backup on. That's no reason to deny all workers the right to ask for and get the flexibility they need, including the right to ask to work from home—a real right with real backup.

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

I'll just make a short contribution to put the government's position on the record, and I'll ignore the irony of a Greens senator spending most of her speech criticising Labor and then saying that we're trying to take political advantage, be that as it may.

The government recognises the importance of flexible work for many workers, including work from home. Our priority is to deliver on our clear election commitment to protect penalty and overtime rates in modern awards, and this bill will implement that commitment. The government will be opposing these amendments because this bill is about protecting penalty and overtime rates. This government supports flexible working arrangements. Anyone watching the last election campaign can be in no doubt that the Albanese Labor government is very strongly supportive of work-from-home arrangements.

The Fair Work Act now permits access to flexible work arrangements in circumstances where the employee is pregnant; the employee is a parent or has responsibility for the care of a child who is of school age or younger; the employee is a carer; the employee has a disability; the employee is 55 or older; the employee is experiencing family and domestic violence; or the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household who requires care or support, because the member is experiencing family and domestic violence. Our secure jobs, better pay amendments require an employer to discuss a request with a worker, consider other changes in working arrangements that could be made and provide reasons in writing for any refusal. Our amendments have also strengthened the commission's powers, including allowing arbitration in a dispute about flexible work.

The Fair Work Act also enables other groups of workers to negotiate outcomes on an industry workplace or individual level. The government supports employers, workers and their unions agreeing to flexible working arrangements that suit them—including through enterprise bargaining, where employees and employers can negotiate and agree on flexible working arrangements that suit their particular workplace. The Fair Work Commission is also currently considering work-from-home arrangements for those covered by the clerks award, which may become a model term for other awards and sectors.

In summary, the actions of the Albanese Labor government have already secured the flexible work rights that these amendments seek to replicate. On that basis we'll oppose these amendments while supporting the bill's intent, which is to protect penalty rates.

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

Minister, you point to the enormous attention this issue garnered in the recent election, and you point to the level of support out there and the support you and your government have for flexibility and for the right to work from home. In light of all that evidence, all that support and what the polls tell us, why are you opposing amendments that would improve flexibility rights for Australian workers?

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

I refer to the contribution I've already made.

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

I think my question deserves a better answer than that. I'm asking on behalf of many workers watching this who want to know why they don't have the right to seek flexibility. These amendments, as you'll be aware, enlarge a right to request flexibility. They don't create a right to get it; they say more workers should have the chance to ask. Why are you opposing that right for those workers?

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

As I say, I just made a contribution which has set out the government's reason for opposing these amendments.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

With respect, it was an inadequate response to Senator Barbara Pocock's question. These are clear amendments that simply extend out who can ask to work from home. I thought that was meant to be Labor policy. You've now got a chance to vote for it, and you're saying, 'That's not what this bill does.' This bill could do that if you vote for these amendments, so why aren't you?

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

For the third time, I've already set out the government's position and why we're opposing these amendments. I don't see the benefit in repeating that.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

Minister, with respect, it sounds like your heart's not really in it. Do you want to have another go?

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

No.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 3390 be agreed to.

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

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

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

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

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

Fair Work Act 2009

1 Paragraph 235(4)(b)

Repeal the paragraph, substitute:

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

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

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

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

Add:

235B Revocation of intractable bargaining declarations

Revocation on application

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

Revocation rather than inclusion of less favourable terms

(2) If:

(a) section 270A applies; but

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

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

Applications for revocation

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

What revocation must specify

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

Further applications for declarations may be made

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

3 Section 270A (heading)

Repeal the heading, substitute:

270A Certain terms must not be less favourable

4 After subsection 270A(2)

Insert:

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

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

5 Subsection 273(4)

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

6 Subsection 273(5)

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

7 At the end of section 274

Add:

Nature of agreement required

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

8 In the appropriate position in Schedule 1

Insert:

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

128 Application of amendments

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

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

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

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

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

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

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

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

The government will be opposing this amendment. The government has been clear that the scope of this bill is in relation to penalty and overtime rates in modern awards. It does not seek to make amendments to the enterprise bargaining framework. It remains the government's position that the process for resolving intractable bargaining should not be used to find ways of making workers' terms and conditions go backwards. Section 270A of the Fair Work Act provides a specific requirement to ensure that a term in an intractable bargaining determination must be no less favourable than existing terms in enterprise agreements. This provision should inform the commission in its approach to this legislation.

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

Minister, can you assure those public servants and firefighters and their union officials who are representing them, who are very concerned about this loophole, that there is no risk to their current rights in relation to consultation and related items in their bargaining? Are you confident, and can you give them confidence, that there is no way they can go backwards?

Murray Watt (Queensland, Australian Labor Party, Minister for the Environment and Water) Share this | Link to this | Hansard source

I'm not going to provide legal advice to anyone outside this chamber on interpretation of a matter. From government's point of view, the act is clear—in particular, section 270A.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) and (2) on sheet 3382 be agreed to.