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Thursday, 24 November 2011
Page: 9488


Senator LUDWIG (QueenslandMinister for Agriculture, Fisheries and Forestry, Manager of Government Business in the Senate and Minister Assisting the Attorney-General on Queensland Floods Recovery) (11:55): I present the bills and move:

That these bills may proceed without formalities, may be taken together and be now read a first time

Question agreed to.

Bills read a first time.

Senator LUDWIG: I table the explanatory memorandums relating to the bills and 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—

BROADCASTING SERVICES AMENDMENT (REGIONAL COMMERCIAL RADIO) BILL 2011

The Broadcasting Services Amendment (Regional Commercial Radio) Bill 2011 amends the Broadcasting Services Act 1992 to ease the regulatory burden on regional commercial radio broadcasters which has arisen as a result of the operation of provisions introduced in the former government's 2006 media reforms.

This bill makes changes to the regulatory arrangements for regional commercial radio licensees to reduce their overall regulatory requirements while ensuring they continue to provide local content for regional audiences.

It also provides appropriate exemptions for remote area, racing service licensees and the small number of licensees operating outside the broadcasting services bands, and revises provisions relating to certain types of changes of control of a licence known as a 'trigger event', including to allow improvements to business practices and reduce unintended consequences.

The changes also ensure compliance with Australia's obligations for radio local content under the Australia United States Free Trade Agreement by integrating the current separate requirements for Australian music and regional local content.

Regional commercial radio localism requirements

The Broadcasting Services Amendment (Media Ownership) Act 2006 introduced a range of new obligations for regional commercial radio licensees relating to levels of local content, minimum service standards for local news and information, local presence requirements and changes of control known as 'trigger events'.

Broadly speaking, ther e are two separate obligations.

First, there are provisions that apply to all regional commercial radio licensees requiring them to provide minimum amounts of 'material of local significance'. The Australian Communi­cations and Media Authority has defined 'material of local significance' in the Broadcasting Services (Additional Regional Commercial Radio Licence Condition—Material of Local Significance) Notice 19 December 2007 as material that is hosted in, produced in, or relates to a regional commercial radio licensee's licence area.

The minimum amount of material of local significance required to be broadcast by each regional commercial radio licensee differs. Most licensees must provide three hours on each of the five business days of each week, while lesser amounts apply for smaller broadcasters and racing radio.

Second, there are a series of additional and overlapping requirements that are imposed after certain changes of ownership—known as trigger events. The trigger event related provisions were introduced to guarantee minimum levels of local news and information, and ensure that changes in ownership did not result in high levels of syndicated content on regional commercial radio.

Following a trigger event, a licensee must in perpetuity meet minimum standards for local news and information, submit to the ACMA local content plans and annual compliance reports, and maintain a defined level of local presence (which includes staffing levels, and use of studios and other production facilities).

The commercial radio industry, Productivity Commission and the ACMA have all expressed concern with the inflexibility of the current legislation, noting that these regulatory requirements for regional commercial radio licensees are affecting the operation and viability of regional radio services.

These concerns were also borne out by respondents to the review of localism require­ments which was undertaken in 2010. In some submissions licensees even said they had not employed extra staff for regional radio stations nor made additional investments in capital equipment because of the requirements.

Of particular concern is that once a broadcaster is subject to a trigger event, under the current legislation they are forever locked into maintaining the levels of local staffing and use of studios and facilities that existed prior to the trigger event—regardless of changed business or economic circumstances, changed audience demand, or technological developments.

With many regional commercial radio licensees already struggling to maintain profitability, these onerous requirements—as well as the administrative reporting burden associated with them—significantly reduce the ability of licensees to adapt their business to deal with new or changed market conditions.

The ACMA reports that 90 broadcasting licences have been affected by trigger events since the provision was introduced on 4 April 2007.

Providing flexibility and consistency while maintaining local content

The changes proposed by this bill will provide greater flexibility for regional commercial radio licensees in meeting their obligations to ensure minimum amounts of locally relevant content is available to regional audiences.

The bill takes into account the limited on-air staff available in some regional areas and the difficulty obtaining short-term replacements for staff on leave. The current requirement to comply with the local content and minimum service standard for news and information for 52 weeks of the year fails to take into account industry working arrangements such as the entitlement of some employees such as journalists to six weeks' annual leave and radio announcers to more than four weeks' leave in exchange for working Sundays and public holidays. While not all employees receive six weeks' annual leave, reducing the compliance period by five weeks will assist the industry while maintaining local content for audiences.

The bill also provides those regional commercial radio operators affected by a trigger event with flexibility in the local presence and reporting requirements after a 24-month period. As mentioned earlier, the current legislation maintains these limitations in perpetuity and limits the ability of licence holders to adapt to changed business or economic circumstances.

The operation of this 24 month 'sunset period' on the local presence and reporting requirements will be considered as part of the statutory review of the provisions undertaken every three years. A transitional provision will cap the obligation to 24 months from the commencement date of the legislation for licensees affected by a past trigger event.

Licensees affected by a trigger event will still be required to provide local news and information and emergency warnings, ensuring that localism is still provided to regional audiences.

The government also recognises that the current legislation is not well suited to some categories of regional commercial radio licence holders, particularly those: operating in remote areas; providing predominantly racing services; or operating outside the broadcasting services bands (referred to as section 40 licence holders).

The wide geographic area covered by some licensees or the highly specialised nature of their content makes compliance with the current legislation particularly burdensome and this bill exempts these operators from the operation of the local content provisions. It also ensures consistent treatment of these categories of licence holders with respect to exemption from the application of the trigger event provisions. These changes will only affect a small number of licences and have a minimal impact.

The bill also provides a tighter definition of the circumstances in which a trigger event takes place, so as to:

reflect consistency with media control principles outlined in Schedule 1 of the Broadcasting Services Act; and

allow for some specific situations to be exempted from the definition of a trigger event. For example, certain types of internal corporate restructures, transactions between close family members where there is no sale of shares and in other limited circumstances.

The ACMA will be given discretion to determine the extent to which the trigger event provisions apply so as to avoid or reduce unintended consequences from events which are not initiated by licence holders (including involuntary administration, bankruptcy and court orders).

Finally, the bill includes amendments which ensure consistency with our international obligations under the Australia-United States Free Trade Agreement. While these amendments place a limit on the overall level of local content (inclusive of Australian music) that the government can require regional broadcasters to provide, it does not reduce the flexibility of regional commercial radio operators to voluntarily provide more local content than that limit.

Conclusion

This bill eases the regulatory burden on regional commercial radio broadcasters which has arisen as a result of the operation of provisions introduced in the former government's 2006 media reforms. It provides greater flexibility to the regional radio industry while maintaining the government's commitment to local content for regional audiences.

... ... ...

FAIR WORK AMENDMENT (TEXTILE, CLOTHING AND FOOTWEAR INDUSTRY) BILL 2011

Background

The Fair Work Amendment (Textile, Clothing and Footwear Industry) Bill 2011 will provide enhanced workplace protection for Australia's most vulnerable workers, and in particular outworkers.

The textile, clothing and footwear (TCF) manufacturing industries cover all stages of production of TCF products, from the processing of raw materials through to the production of final goods. Clothing and footwear manufacture, in particular, are labour intensive with limited scope for mechanisation of significant parts of these processes. This has led to the use of outworkers for much of this work.

A number of reviews over the past 15 years have raised concerns about the situation of outworkers in the TCF industry.

Most recently, a report by the Brotherhood of St Laurence in 2007 found that outworkers experience poor working conditions and are frequently underpaid, sometimes as little as two or three dollars per hour.

These reviews have found, and the Government accepts, that outworkers in the TCF industry suffer from unique vulnerabilities as a result of their engagement or employment in non-business premises. These vulnerabilities are made worse by the fact that outworkers are often migrants with poor English language skills, a lack of knowledge about the Australian legal system and low levels of union membership.

The Fair Work Act already contains a number of important protections for TCF outworkers including scope for awards to include targeted ' outworker ' terms, and enhanced right of entry arrangements. Additional entitlements and protections for outworkers are contained in the Textile, Clothing, Footwear and Associated Industries Award.

Most states also have legislation that provides protection to TCF outworkers. However, there are differences in the approach that they take. For example:

in New South Wales, Queensland and Tasmania legislation deems contract outworkers to be employees, while more limited deeming applies in Victoria and South Australia

there is provision for the recovery of unpaid amounts up the supply chain in most but not all states

there is a mandatory code of practice in place in New South Wales, Queensland and South Australia.

There is no relevant legislation in Western Australia.

In other words, although most jurisdictions have recognised that special measures for outworkers are required, there has not been a uniform approach, meaning that outworkers do not have the same level of protection in all jurisdictions.

Where outworkers are entitled to fair minimum conditions, they can have difficulty accessing them . Even the Fair Work Ombudsman faces difficulties in identifying and assisting outworkers because outwork is, by definition, not performed in traditional workplaces and it can be difficult to identify for whom work is being performed.

The government recognises the disadvantaged position of outworkers in the TCF sector and that they require specific regulatory protection in order to the control the exploitative conditions under which they are employed .

That is why the government is committed to harmonising those arrangements to ensure all TCF outworkers are employed under secure, safe and fair systems of work.

The government ' s intention is to achieve this by implementing nationally consistent rights to legal redress and protection that are of no lesser standard than currently apply in state laws and regulations, and the federal TCF award.

This Bill implements that commitment by:

ending the artificial distinction by deeming contract outworkers in the TCF industry to be employees, by extending the operation of most provisions of the FW Act;

providing an effective mechanism to enable TCF outworkers to recover unpaid amounts up the supply chain;

addressing a limitation that currently exists in relation to right of entry into premises in the TCF industry operating under 'sweatshop' conditions; and allowing for a TCF outworker code to be issued.

In relation to the extension of specific right of entry rules to premises in the TCF industry operating under 'sweatshop' conditions, there will be an exception for the principal place of business of a person with appropriate accreditation. In such cases, the standard right of entry rules will continue to apply.

The existing power of Fair Work Australia to include outworker terms in awards will not be limited. Additional protection for outworker terms will be provided by ensuring that these important industry wide standards cannot be undercut by use of flexibility terms in enterprise agreements.

These changes will promote fairness and ensure a consistent approach to the workplace entitlements and protections for a class of workers that are widely recognised as being uniquely vulnerable to exploitation.

Extending the operation of the Fair Work Act

The bill extends the operation of most aspects of the Fair Work Act to TCF contract outworkers.

This ensures that outworkers in the TCF industry have the same terms and conditions, as well as other rights and entitlements, as other workers regardless of their status as employees or contractors. This approach is consistent with the approach that has been taken in many states.

Under the changes proposed in this bill the person who directly engages a TCF contract outworker will be treated as their employer.

The objective of these amendments—clearly stated in the bill—is to ensure that contract outworkers are taken to have the same rights and responsibilities as employees in the same position.

The bill recognises that there may be instances where technical modifications or clarifications are required and allows regulations to be made to ensure the effective application of particular provisions to contract outworkers. However, the Bill makes clear that such regulations can only be made to ensure the effectiveness of, and not to undercut, the extension of the Act to contract outworkers.

Recovery of unpaid amounts

The bill provides a mechanism to enable outworkers to recover unpaid amounts up the supply chain.

The Productivity Commission's Review of TCF Assistance (2003) reported findings that outworkers are often not paid for the work they do and that, because the supply chain consists of numerous subcontractors, outworkers may often find it difficult to pursue any unpaid monies or entitlements.

Provision for the recovery of unpaid amounts up the supply chain is a feature of outworker protection legislation in Victoria, New South Wales, Queensland and South Australia, and recognises the fact that TCF outworkers are engaged at the end of a sometimes long supply chain.

Under the changes proposed in this Bill, an outworker who has taken reasonable steps to seek payment from the person who is liable to pay them, may recover an unpaid amount from another entity in the supply chain for whom work is done indirectly. This does not include retailers who sell goods produced by, or of a kind often produced by, outworkers, where the retailer does not have a right to supervise or otherwise control the performance of the work.

The amounts that may be recovered under these provisions include not only wages or com­mission but also other amounts owing in relation to particular work, such as superannuation.

Where an indirectly responsible entity pays an unpaid amount, they will be able to recover the payment from the person who was responsible for the payment, plus interest, or offset it against other amounts that they are owed.

These arrangements are designed to supplement existing arrangements. The Bill therefore makes clear that these new provisions do not limit any action that an outworker might otherwise have in relation to unpaid money, including remedies available under state law.

Code of Practice

The bill allows an outwork code of practice to be issued dealing with standards of conduct and practice in the TCF industry.

The code may impose reporting or other requirements on employers or other persons engaged in the TCF industry to enhance the transparency of supply chains that result in outwork being performed.

An outwork code will enable arrangements for the performance of TCF work through the supply chain to be monitored. Provision for a code will assist in ensuring that no economic advantage can be gained by avoidance of responsibility for workers' entitlements.

The amendments will enable the best aspects of state codes to be incorporated into a federal code, or compliance with these standards to be taken to amount to compliance with the federal code, where appropriate. However, the long standing arrangements in the federal award cannot be undercut.

Right of entry

The Fair Work Act already recognises the importance of right of entry to workplaces in securing fair working arrangements, and provides enhanced entry rights in relation to outworkers.

This bill seeks to extend that protection further, and enable effective monitoring of not only outworker arrangements but also other exploitative practices in the industry, and in particular sweatshops.

At present, entry to such premises generally requires 24 hours notice of intention to enter . The nature of sweatshop operations, and the ease with which they can relocate, means that there is a risk that the current requirements operate to undermine the effectiveness of entry rights. The existing capacity to seek Fair Work Australia approval to enter without notice on a case by case basis is not a practical alternative in this industry.

The bill will extend specific right of entry rules that apply to suspected breaches affecting outworkers (which allow entry without 24 hours notice) to the industry more generally, with an exception for the principal place of business of a person with appropriate ethical standards accreditation.

This recognises that poor practices in the TCF industry are not confined to work conducted in peoples' homes, but also take place in conventional workplaces operating under sweatshop conditions.

The government believes that strong action on this issue is required, as reports continue of people working in sweatshops in the TCF industry.

For example, in November 2011 a Channel 9 film crew accompanied a union official to a Melbourne TCF sweatshop and found squalid working conditions.

In July 2011 the Sunday Herald Sun reported on sweatshops and outworkers producing school uniforms for Victorian families for as little as $7 an hour -less than half the award rate.

Enhanced right of entry will assist in stamping out these exploitative practices.

In making these changes the government does not suggest that all, or even most, premises in the industry operate as sweatshops.

For this reason, the new enhanced entry rights will not apply to the principal place of business of a person with an appropriate accreditation. In such cases, the standard right of entry rules will continue to apply.

Linking right of entry to accreditation is intended to increase the level of scrutiny given to supply chains and improve standards in those corners of the TCF industry that do not currently operate appropriately, for the benefit of both workers and businesses in the industry.

Impact of the changes

These changes will go a long way to ensuring that vulnerable workers in the TCF industry receive fair and decent working conditions and are paid the minimum entitlements they are due.

These changes will make it easier for the Fair Work Ombudsman to identify businesses that engage outworkers and investigate and enforce breaches of the Fair Work Act and TCF Award.

These changes will improve the ability of the relevant union to enter and identify sweatshops and assist employees working in unacceptable conditions.

The government recognises that some businesses in the TCF industry may be concerned about these changes.

If a business already complies with the outworker provisions in the TCF award and relevant state legislation, then these amendments should have limited impact.

Only those that flout existing laws—by exploiting outworkers, by forcing employees to work in sweatshop conditions, and by taking advantage of the vulnerable position of migrant workers—should be concerned.

The amendments will make it easier for outworkers to receive their minimum entitlements and will ensure compliance with the relevant provisions at all levels of the supply chain. By improving compliance with the existing provisions across the board and by introducing consistent provisions for outworkers, large retailers and clothing brands will have additional assurance that the garments they sell have been manufactured in an ethical way.

In the consultation on the bill the union has raised issues over the unintended effect of some of the provisions.

In particular the government is consulting with the relevant union to streamline the evidential processes relating to recovery of unpaid amounts up the supply chain, to reflect the difficulties that outworkers with poor English language skills may face and the complex nature of TCF supply chains.

The government is also considering what changes need to be made to ensure the greatest possible reach of the deeming provisions so that no outworker is inadvertently beyond their reach by operation of the corporate veil.

These changes will be reflected in amendments which the government will introduce during the passage of this bill early in 2012.

The government is committed to ensuring that these provisions operate to provide the protections intended.

Conclusion

This bill reflects the government's commitment to implement nationally consistent protections for vulnerable workers in the TCF industry.

This bill reflects the future of the sector where consumers are confident that goods are produced ethically, with workers receiving fair wages and decent conditions.

... ... ...

HIGHER EDUCATION SUPPORT AMENDMENT (VET FEE-HELP AND OTHER MEASURES) BILL 2011

The bill will introduce a number of measures that will strengthen and streamline the Higher Education Support Act 2003 resulting in more effective and efficient administration of the Australian Government's student income-contingent loan programs in the higher education and vocational education and training sectors, namely, FEE-HELP and VET FEE-HELP.

The bill provides for the use and disclosure of information by Commonwealth officers gained through the administration of FEE-HELP and VET FEE-HELP for certain purposes including to the newly established national regulators in the higher education and vocational education and training sectors, namely the Australian Skills Quality Authority and the Tertiary Education Quality Standards Agency operating under the National Vocational Education and Training Regulator Act 2011 and the Tertiary Education Quality and Standards Agency Act 2011 respectively. This will support consistent decision-making across Commonwealth regulatory frameworks.

The bill will also improve the Common­wealth's ability to manage risk to the administration of public monies and better protect students in the vocational education and training sector by strengthening the compliance provisions for approved VET providers. As provider approvals are issued in perpetuity, the bill makes it explicit that an approved VET provider must notify the minister of events that affect its ability to comply with the requirements to continue to maintain its approved provider status.

Further, the bill includes a transparent provision to make it clear that the secretary may vary or revoke a determination that an advance payment is to be made to a VET provider if the secretary is aware that that the provider may not comply with the requirements under the act or may not be financially viable. In deciding to vary or revoke, matters with which the secretary may take into consideration have been provided for, such as the nature of non-compliance, the provider's history of compliance and the impact of the provider's non-compliance on its ability to deliver quality education and training.

The bill will also improve the administrative arrangements for application times for higher education providers and VET providers. This amendment will clarify that the minister's authority to decide an application for approval exists beyond the time periods specified under the act.

And lastly, the bill provides for clearer, simpler and improved administrative arrangements for the assessment of an individual's Higher Education Loan Program debt. In doing so, the Bill enables improved congruity between the Higher Education Support Act 2003 and taxation legislation.

Debate adjourned.

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