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Wednesday, 25 June 2003
Page: 17555


Mr McCLELLAND (7:22 PM) —by leave—I move opposition amendments Nos (1) to (6):

(1) Schedule 1, items 1 and 2, page 3 (lines 5 to 23), omit the items.

(2) Schedule 1, item 4, page 3 (lines 26 to 31), omit the item, substitute:

4 At the end of section 149

Add:

(1B) For the purpose of determining whether an employer is a successor, assignee or transmittee of the business or part of the business within the meaning of paragraph (1)(d), the following factors must be considered:

(a) whether the activities performed by the employees in the business or part of the business of the employer who was a party to the industrial dispute are substantially the same as the activities performed by the employees in the business or part of the business of the alleged succes-sor, assignee or transmittee; and

(b) whether the relevant business activities of the employer who was a party to the industrial dispute are substantially the same as the rele-vant business activities of the alleged successor, assignee or trans-mittee.

The existence of either or both of these factors would tend to indicate that an employer is a successor, assignee or transmittee within the meaning of paragraph (1)(d).

(1C) For the purpose of determining whether to make an order that an award does not bind, or binds only to a limited extent, a successor, assignee or trans-mittee within the meaning of paragraph (1)(d), the Commission must consider:

(a) whether the successor, assignee or transmittee is already bound by another award; and

(b) whether the activities performed by the relevant employees in the bus-iness of the successor, assignee or trans-mittee can be separately identi-fied in the business of the successor; and

(c) whether the relevant employees of the successor, assignee or trans-mittee would be disadvantaged if such an order were made; and

(d) the effect of such an order on the efficiency and productivity of the business.

(3) Schedule 1, page 3 (before line 32), before item 5, insert:

4A After section 149

Insert:

149A Persons bound by awards—ships

If:

(a) a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912; and

(b) the ship ceases to be engaged in the coasting trade; and

(c) at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912;

then, from the later time, an award which bound the employer of the seamen employed on the ship when the ship was engaged in the coasting trade binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit.

(4) Schedule 1, items 6 to 9, page 4 (lines 1 to 12), omit the items, substitute.

6 At the end of section 170MB

Add:

(4) For the purpose of determining whether a new employer is a successor, assignee or transmittee of the whole or part of a business within the meaning of para-graphs (1)(c) or (2)(c), the following factors must be considered:

(a) whether the activities performed by the employees in the business or part of the business of the previous employer are substantially the same as the activities performed by the employees in the business or part of the business of the new employer; and

(b) whether the relevant business activities of the previous employer are substantially the same as the relevant business activities of the new employer.

The existence of either or both of these factors would tend to indicate that the new employer is a successor, assignee or transmittee within the meaning of paragraphs (1)(c) or (2)(c).

(5) Schedule 1, item 10, page 4 (line 15) to page 8 (line 9), omit section 170MBA, substitute:

170MBA Successor employers bound—ships

(1) This section applies where:

(a) a ship is engaged in the coasting trade within the meaning of section 7 of the Navigation Act 1912;

(b) the ship ceases to be engaged in the coasting trade; and

(c) at a later time, the ship operates under a continuing permit issued under section 286 of the Navigation Act 1912;

(2) If:

(a) the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

(b) the application for certification of the agreement stated that it was made under Division 3;

then, from the later time:

(c) the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit; and

(d) a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c) of this subsection.

(3) If:

(a) the employer of the seamen employed on the ship when the ship was engaged in the coasting trade was bound by a certified agreement when the ship was engaged in the coasting trade; and

(b) the application for certification of the agreement stated that it was made under Division 2;

then, from the later time:

(c) the certified agreement binds, in relation to that ship, the employer of the seamen employed on the ship when it is operating under the continuing permit, if that employer is a constitutional corporation or the Commonwealth; and

(d) a reference in this Part to the employer includes a reference to the employer referred to in paragraph (c) of this subsection.

(6) Schedule 1, item 11, page 8 (line 10) to page 9 (line 23), omit the item.

Briefly, these amendments are intended to further clarify and primarily protect the interests of employees in transmission of business situations. Amendments (2) and (4) were motivated by the decision of the High Court of Australia in the PP Consulting case—that is, by looking at the activities undertaken by an employee in the situation of a transmission of business and the activities of the new employer in that situation, we believe a fairer test is developed. In the PP Consulting case it was determined that, because an employee was engaged to undertake banking work in a pharmacy, they were not engaged in a transmission of business situation because the nature of the business—namely, a pharmacy—was different from that which previously existed, namely, the St George Bank as it operated in Byron Bay. That is the first point with respect to amendments (2) and (4).

The other amendments of significance are (3) and (5). They deal with the situation of a ship engaged in coastal shipping. We have been motivated to move these amendments by the situation involving the ship the CSL Yarra. This ship was sold by an Australian company to a related foreign company, then crewed with foreign labour. The foreign crew worked under significantly inferior terms and conditions of employment. This is a trend, as the shadow minister for transport indicated today, with an increasing number of foreign ships being allowed to operate on Australian coastal routes. It has significant input for all Australians who are engaged in the transport industry. If foreign flagships with foreign crews are allowed to operate and replace Australian ships, that will undermine the terms and conditions of not only Australian seafarers but also Australian employees engaged in the transportation industry generally. Whether they are engaged in trucking or in rail transport, they will all suffer from the same cost pressures.

So we believe it is very important to hold the line at that point where it is so easy to introduce cheap foreign labour onto ships plying Australian coastal routes. For that reason, we have proposed that, if an Australian flag vessel is transferred to foreign ownership and crewed with foreign labour but is subsequently brought back in to undertake Australian shipping routes, the terms and conditions that apply on board that vessel should be those that previously applied when it was crewed by Australian labour. We believe this will provide a disincentive to replace Australian seafarers with cheap foreign labour and, hence, will protect the interests of all Australian workers who are engaged in the transport industry. These amendments will make the situation of transmission of business fairer and will protect the jobs of Australian workers.