Senator SHERRY (12:17 PM) —by leave—I move opposition amendments (1) and (2) on sheet 4291 revised:

These amendments go to the same issue, which is to remove the government's proposed 2010 date and substitute 2005. Exemptions were originally granted in, I think, August 2001 for some employers. We do not have a detailed list, unfortunately. As I have said, I am not critical of the Treasury on this; it is not easy information to obtain. For some reason it seems to be more focused on Queensland than anywhere else. It might partly be because of the mining industry but we have not been able to find out why nurses, for example, in Queensland did not have the weekend penalties and, I think, all the shift provisions applied to ordinary time earnings. It is very difficult to find a detailed and comprehensive list of the employers, beyond some general information which you can gather anecdotally. I am certainly aware of one mining company in Tasmania which has been drawn to my attention by the Australian Workers Union.

The superannuation guarantee of nine per cent was phased in over approximately 10 years. We reached nine per cent on 1 July 2002. So there was a phase-in. Senator Cherry, there were negotiations at the time with the Senate Select Committee on Superannuation. Senator Cherry was not in this place then but he is quite correct; the Democrats did obtain a longer phase-in period. The full nine per cent now operates. We certainly would not suggest that the exemption be ended from 1 July 2002—that would be retrospective—but we think 1 July 2005 is sufficient notice. I point out that the employer should be able to argue incapacity to pay—that, if an employer believes that their exemption should not be removed from 1 July 2005, they should be able to argue that in the state or federal industrial commission. We think that that is appropriate. There may be circumstances where the employer does have a restricted capacity to pay, and we think it is reasonable that that be taken into account.

We think that a further six years is unreasonable. The government may have picked this up from a recommendation of the Senate select committee—I am not sure whether they did. The Senate select committee made recommendations on this about 18 months or two years ago. We think that 1 July 2005 is appropriate. The other problem is that the government has not been able to explain how this would be implemented with the employers that are exempt. What is to stop an employer simply saying, `We're not going to change anything until 1 July 2010'? The ball is in the court of the employer here. They can frustrate any change until 1 July 2010. We think that that is an unreasonable approach.

I should explain that our second reading amendment, which was passed, did refer to the industrial commissions but the specific amendments before the Senate do not; they just substitute 2010 for 2005. We believe the onus would be on the government, if there were a legislative requirement to provide for the argument of incapacity to pay before the federal industrial jurisdiction, to bring forward the necessary amendment to allow that to happen. We would support such an amendment if our amendments were maintained in the bill beyond the message stage—provided that it is passed here now.