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Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009

CHAIR —I welcome to this inquiry the next witnesses from the Australian Council of Trade Unions. We have received your submission. Do you have any additions or alterations to make?

Ms Bowtell —No, there are no additions or alterations.

CHAIR —We invite you to make some opening remarks to the committee and we will follow with questions.

Ms Bowtell —The ACTU supports this bill as the next step in giving effect to the Fair Work Act. We support large parts of the bill as being a responsible and sensible way to transition from the very complicated regime of the current industrial relations legislation, which builds system upon system upon system with notional instruments and instruments that exist only by virtue of tracking back through decisions and legislation, and trying to deal with those issues and bring them forward to operate within the new system.

Having said that, there are a couple of policy areas where we think that the bill has not quite got it right. The ACTU has a longstanding view, which the government clearly does not share in the drafting of this bill, that, having set in place a new safety net, that safety net should apply in the new system and that any predecessor instruments, legacy instruments, from the old system that do not meet that safety net should not continue in the new system. There are a variety of ways in which you could get rid of those instruments. We think the most effective way for that to happen would be to empower Fair Work Australia to make orders to transition workers off agreements that do not meet the safety net once the Fair Work Act is in operation.

I want to remind senators that this is not just for AWAs and ITEAs, which lapse, effectively, when the employee changes job or whatever. It also applies to collective instruments. New hires can continue to be employed under those instruments into the future for a period of up to, potentially, another five years. So you could have new hires in a workplace being hired on an instrument which provides only for the Australian fair pay and conditions standards under the current act—and the new minimum wage system and the protected award matters. Those instruments would continue to apply, and the new modern award safety net would have no relevance. It is true that the National Employment Standard has relevance, but the key areas where these instruments have cut conditions are not contained in the NES. They are contained in overtime rates, penalty rates allowances and so forth, which are found in awards.

The second issue in relation to transitional instruments is we are most concerned that the Commonwealth has decided that any instruments that rely on its power to regulate noncorporations using the conciliation and arbitration power will lapse. The effect of that decision is that groups of employers and employees who, for whatever reason, have historically been covered by the federal industrial relations system will find themselves with no regulation of the terms and conditions of employment. While the state systems would pick them up, in some circumstances there is no relevant state award to pick them up, so they fall out of the federal system, by virtue of the fact that they are not a corporation, without there being any effective means to transition them back into the state systems. That is partly a responsibility of the states, but by simply having a drop-dead date for the regulation under the federal laws you leave these workers vulnerable to having inadequate regulation in the state system. We say that it is the responsibility of the Commonwealth, in deciding to retreat from the area, to ensure that people are not disadvantaged, and it can do that either by negotiation with the states or, we would say, more effectively by continuing to regulate this area using the C&A power.

The third area where we have some concerns is in the making of the modern awards. We recognise the work that take-home pay orders have to do. However, in giving effect to the intention, which seems to be a legislative grandfathering of people’s take-home pay, the Commonwealth has not quite got it right. The fact that the legislative grandfathering only preserves the status quo of the day before the modern award is switched on yet the transitional period for modern awards could be up to five years means that there may well be employees whose circumstances change after the modern award is switched on and who will find themselves disadvantaged a day, a week, a month, a year later because the point in time at which you measure whether there has been a reduction in take-home pay is the point in time before the modern award was switched on rather than at any time during that transitional period.

This is not good for employers either. If you think about, perhaps, a decision to transfer someone at the same level and working the same hours but to a different job then you see that they would no longer be doing the same work pre and post award modernisation. They would no longer qualify to make an application in relation to take-home pay orders, yet they could well be disadvantaged by the making of the modern award. So, as well, it would potentially limit the flexibility that employers have to restructure their workforces.

We have concerns about the enterprise award criteria whereby we think—and, again, it is the same point—that, having set a safety net, it is important that that safety net be respected. To continue to entrench agreements or awards that are below the safety net through enterprise award modernisation would be contrary to the general scheme of the Fair Work Act.

We have noted our concern about representation orders. We have read the submissions of the employer community in relation to this area and it seems to us that their concerns go more to employers maybe not knowing which union is entitled to represent people. So we would not oppose Fair Work Australia being able to make orders that were declaratory in nature but we do oppose Fair Work Australia being able to make pre-emptive orders to carve down or scale back a union’s representation rights in the absence of any live disputation or concern at the workplace. If it were merely to ensure that there was certainty as to who did and did not have the eligibility to enrol and represent members then that would be something that of course people should have certainty around, and there should be capacity to deal with that.

Finally, in relation to the involvement of state-registered unions in the system, we think that the architecture the bill contains is right in that it seeks to minimise, over the long term, two organisations purporting to represent the same groups of workers, which is not a sensible way forward, and it does seek to preserve the rights of state unions that have actively represented people to participate in the federal system but to minimise overlap where there is no history of active representation. However, we are concerned that the drafting does not give proper reflection to that architecture. So we do not oppose the architecture but we think there is some work to be done in the drafting.

With those concerns noted, we are happy to take questions.

Senator ABETZ —Thank you for your submission. In section 1.1 you say:

We submit that the appropriate response is to allow FWA to terminate transitional instruments, in the public interest, in cases where they disadvantage employees compared to the modern award.

Would you see that as being a two-way street in that if employers were to be significantly disadvantaged then Fair Work Australia would be similarly empowered?

Ms Bowtell —The context for that comment is that there is an AWA, an ITEA or potentially a collective agreement in place in which, taken as a whole, overall the employees receive terms and conditions of employment that are inferior to the new modern award. If your proposition were to be right, that would empower Fair Work Australia to terminate just about every collective agreement in the country which is superior to the new modern award—if I understand your proposition—which would presumably undermine the whole basis of collective bargaining in the country.

Senator ABETZ —So it is only a one-way street.

Ms Bowtell —It is a one-way street because, the safety net having been set, what you are remedying here is the ongoing operation of individual or collective agreements that fall below the safety net. Our argument is that if you set a safety net it should be a safety net without holes in it and this is leaving a significant hole in the safety net.

Senator ABETZ —I can understand the ACTU perspective because you are charged in general terms with looking after the interests of workers, but it would not be surprising to me if an employer organisation were to suggest, ‘If that’s the case and our economic viability is at stake, why can’t we revert down to the safety net?’ If others can revert up to it, why shouldn’t they be able to revert down to it?

Ms Bowtell —If a modern award is adjusted upwards and it imposes additional costs on employers, and you are saying they are disadvantaged by that, our whole problem is that that does not actually apply to people covered by these transitional instruments. The adjustment in the modern award to an employer covered by one of these transitional instruments makes no difference. If you have made an enterprise agreement, an IT error or an AWA, what happens in the modern award is irrelevant to you until you get to bargain again, so you do not have a cost imposed upon you. The only people who have changes in their conditions of employment under the making of the modern awards are people who do not have a formal instrument, who do not have an AWA or an ITEA. Employers who have instruments, have made agreements and have entered into contracts with their employees do not face any lift in their employment costs by the making of modern awards until such time as they go to rebargain. That is the essence of our problem: that the making of the modern award does not flow through to those workplaces.

CHAIR —How many people do you think are just simply award reliant?

Ms Bowtell —The estimates vary between 1.2 million and 1.6 million people, depending on whether you are talking about federal or federal and state awards. So 1.2 million are probably award reliant for their wages. But conditions of employment will go much broader than that. The most recent ABS data about methods of pay setting, which only looks at pay and not conditions, suggests that about 40 per cent of non-managerial wage and salary earners earn some overaward pay but the award would actually set their conditions of employment because adjusting those is outside formal bargaining. Some of those will be well above and it will not matter what happens in the award but there will be another group that are not wholly award reliant for their pay but will be very close to the award safety net and an adjustment in the award allowance rate or when penalty rates are paid or whatever would directly affect them. We do not know what proportion in that 40 per cent are close to the award as opposed to those who are paid reasonably well above the award in order to compensate them.

Senator ABETZ —With modern awards, one proposition that has been put to us by the Chamber of Commerce and Industry Western Australia is that health employees, for example, have traded away extra pay on public holidays in exchange for two extra weeks of annual leave so they get six weeks annual leave. Hospitals have to run 24/7. Everybody gets paid a particular rate and they are given these two extra weeks. If that is then to be examined line by line, as I understand will occur, and these benefits are transported to the modern award, these employers would then get the benefit, potentially, of six weeks annual leave but also the benefit of penalty rates on public holidays et cetera. That is where there can and will be a substantial and very debilitating impost on certain employers.

Ms Bowtell —I do not know the detail of that but the way that example would work in my understanding is that the trade that was done by trading an award entitlement—public holiday penalty rates—for additional annual leave would have had to have been done through a registered collective instrument. So changes in the modern award are unlikely to affect that provided the total package leaves the employees better off overall under the new system. That trade would continue. The only time that a line by line comparison becomes relevant is if it is in the National Employment Standards, where you cannot trade one for the other. But the payment of penalty rates on public holidays is not contained in the National Employment Standards; it is an award matter, as is additional annual leave.

So that type of arrangement, whereby people have said that they would value more leave as opposed to penalty rates on public holidays, would be able to continue on an ongoing basis provided people are happy to renew that agreement. When they come up for bargaining, if the employers and the employees in their total basket of arrangements have come up with an adequate trade—on this basis it sounds as if they have: you get 11 public holidays and two weeks annual leave so it is probably one day short, actually—then that arrangement would continue. If they have not then they would revert to the award arrangements of four weeks annual leave and payment on public holidays.

Senator ABETZ —I will not argue that further other than to draw your attention to pages 8 and 9 of the Western Australian Chamber of Commerce and Industry submission, which says:

Under the proposed no-detriment rule, an employee (other than an employee employed in a non-client related position) would continue to receive 6 weeks annual leave because it is more favourable than the 4 weeks annual leave provided by NES.

So I do think that there is a live issue. But in relation to the modern awards the suggestion has been put that chances are that, with the flurry of activity, with the best will in the world there are going to be errors made in the modern awards and therefore the two-year interim review may potentially be too long from both an employee point of view and an employer point of view. Therefore, something like an unintended consequence should be allowed for to reopen the award to deal with such circumstances. In general terms I was wondering what your view is.

Ms Bowtell —The ACTU would support that. There is not doubt that the commission is working very hard, as are all the parties. There are some decisions that we find difficult to reconcile. That is not a criticism of the Industrial Relations Commission generally—they are doing a very difficult job and working as hard as they can to bring it to finality—but it is a very complicated issue and there will be errors. The capacity to remedy them quickly would be a useful thing but it should not be used to reopen matters that were decisions of the commission, deliberately made.

Senator ABETZ —I think you would find heated agreement from the employer organisations in relation to that, as well. It should be genuinely only for those situations where a paragraph was accidentally left out, or something of that nature, which was not picked up.

I move on to the position of registered organisations. I would have thought that the administration of a regime of registered organisations is important, and the way that the regime is expressed is more important than where that regime might physically exist. Can you explain to me why the ACTU considers it to be so important to have what you describe as a nexus between the registered organisations regime and general workplace law?

Ms Bowtell —Well there is an issue—it is more than a symbolic issue—about the role of representative organisations, trade union and employer organisations in the system, and the legitimacy of their participation in the system. Over the last period of time there was been quite significant attacks, particularly on the role of unions in the system. So having the registration and regulation of trade union entities as integral to our regulation of fair work is something that we see as more than symbolic.

There is also a practical issue, in that it makes the constitutional nexus clearer if the legislation is contained in the same legislation, so that the creation of trade unions and employer organisations is connected with the regulation of corporations through this legislation rather than having a separate bill.

Senator ABETZ —Do you have any legal authority to say that the nexus would be clearer? I would have thought that if the High Court had to make a determination on the matter they would not be interested, quite frankly, as to whether it was a separate act on its own relying on certain constitutional powers or incorporated in another act of parliament relying on certain constitutional powers.

Ms Bowtell —I do not know whether that question has ever been before the High Court. The question in the past has always been whether the creation of trade unions was incidental to the conciliation and arbitration power. Intuitively, you would think that having it in the same legislation certainly bolsters the argument that it is incidental to the regulation, rather than stand alone.

Senator ABETZ —So could that then be your concern? If I might say, I think you ran a symbolic argument first—I accept that—and then the practical argument, which was the legal nexus and its constitutional justification. Could that practicality not be overcome by the act indicating the constitutional power that it draws upon and, as a result, provide exactly the same protection as if it were incorporated in—can I use the term—’mainstream’ workplace relations legislation, as opposed to a separate stand alone piece of legislation?

Ms Bowtell —I am sure there is a number of things you could do to bolster the constitutional authority of the regulation of trade unions. Whether it were done that way or other ways—I am not a constitutional lawyer—but I would say that the integration argument is not just a symbolic argument. The way—

Senator ABETZ —You gave me a practical argument, which you said was the nexus, which I think we could—

Ms Bowtell —Yes. I said I had a practical one.

Senator ABETZ —Is there another practical argument that you would put to us?

Ms Bowtell —I would be scraping the bottom of the barrel to go to practical arguments about having to carry around two pieces of legislation rather than one I think, so I probably will not rely on that!

Senator ABETZ —All right.

Ms Bowtell —Our objection is largely the one which you describe as symbolic and which we say is actually operational and goes beyond symbolism but does make sure that registered organisations are at the heart of our industrial relations system, and not seen as peripheral to them.

Senator ABETZ —Thank you for explaining that for me. Can I take you to 6.3 of your submission, dealing with representation orders? You assert in the second paragraph:

First of all, the provisions are entirely unnecessary, since there is unlikely to be a significant increase in demarcation disputes under the new legislation.

Given the important caveat that you say there is unlikely to be a significant increase, can we agree that you do see there will be an increase in demarcation disputes but you are just not willing to say that it will be a significant increase? That is how I read your statement. We can argue what significant means, but I think most people would be agreed that there is the potential for increase in demarcation disputes, and some unions themselves have put that to us as a committee. I just want to get an understanding whether the ACTU accepts that there is a likelihood of an increase in demarcation disputes. How much that increase might be is potentially very much a theoretical argument.

Ms Bowtell —We can bring two things to bear on this question. There is our experience over the period since the availability of bargaining. Until 1996, you could only reach an agreement where you had an interstate industrial dispute, so collective bargaining was limited not only to a workplace where you had constitutional coverage but also where an interstate industrial dispute had been found to exist. It was then the agreements were made in settlement of that dispute. From 1996 onwards we had the two forms of collective agreement available to unions, one of which was in settlement of an interstate industrial dispute and the other was directly with a constitutional corporation with whom they had employees employed within their constitutional coverage.

The opening up of bargaining to any union that had a member within their constitutional coverage did not lead to an outbreak of demarcation disputes. In fact, I would be surprised if we could find, if we went back through our history, any examples of unions opportunistically using that change in the law—that is, your entitlement now rests on your constitutional coverage rather than the fact that you are party to an award or party to an interstate industrial dispute to try to recruit, organise and bargain in a workplace where they had not previously been recruiting, organising and bargaining.

Our experience is that changing the threshold to start bargaining did not lead to any change in union behaviour, so our prediction is that that will continue to be the case. I think that is probably what that sentence is based on—that prediction that that will continue to be the case. Since that time, I think you would say that there is a greater sense of unanimity amongst the trade union movement that demarcation disputes are not in our interests and that there is an even greater commitment to try not to have demarcation disputes but to go and organise in workplaces where there are not other people’s members rather than trying to organise in workplaces where there are union members.

Senator ABETZ —I understand that, but just to clarify: instead of ‘there is unlikely to be a significant increase in demarcation disputes’; am I to read that that you accept that there is likely to be an increase in demarcation disputes?

Ms Bowtell —No, that would not be an accurate reflection. From our experience, we would say that there is no likelihood of increased demarcation disputation. Nonetheless, there is a change in the legislative framework and there is a change that there will be, by virtue of the bringing together of the state and federal systems, some areas where there will be more overlapping coverage than there has been. So we do not predict any increase, but we could not say with certainty that it will not happen, because next time when we are back here and something has happened, you will say, ‘We told you it would not happen.’ So I am not going to give you an absolute guarantee—

Senator ABETZ —Very wise!

Ms Bowtell —but all of our experience suggests that we would not predict an increase at all in demarcation disputes.

Senator ABETZ —Can I then finally ask you, as time is getting on: do you accept that, much as the trade union movement love each other immensely—I am sure they do—there are some unions that are known to have a degree of enmity between them? Would you agree with that proposition?

Ms Bowtell —No, I would not agree with that—

Senator ABETZ —Would you use the term ‘creative tensions’ or something else?

Ms Bowtell —There are unions that have traditionally operated with overlapping coverage, and that has not necessarily created enmity but has created competition. To move from competition to enmity is a big leap, I think.

Senator ABETZ —It is a huge leap. So would you say that the trade union movement, in the past 10 or 20 years, has had a history of some, at least, enmity or would you describe it more as competition or creative tension or a somewhat more neutral term?

Ms Bowtell —I think that where there are disagreements between trade unions they will vary. The location of those disagreements will vary depending on the issue. It will not necessarily divide on one union always opposing another union and their having that enmity that you talk about. There are alliances that move and change—as there are in all political organisations. In all political organisations there are alliances that move and change, but I do not think that there are fixed oppositional pieces and enmities.

Senator ABETZ —That is fine. To correct the record, it was not me that was using the term ‘enmity’. I was repeating a term used by Ms Gillard in her explanatory memorandum at page 129. That is just for the record.

Senator JACINTA COLLINS —We did understand that, Senator.

Senator ABETZ —Yes, but just for the record. I know you do not like being reminded of it.

Senator JACINTA COLLINS —I am bemused by the fact that you seem to have some naivety that there was this aspect of the trade union movement. I thought it was well known.

Senator ABETZ —What—that there was enmity?

Senator JACINTA COLLINS —There are elements of enmity as there are elements in any form of human behaviour.

Senator ABETZ —Thank you for that evidence. I hope Hansard caught that.

CHAIR —Senator Collins, do you have a question?

Senator JACINTA COLLINS —Yes, I want to go to the enterprise instrument modernisation section of your submission please, just to get you to elaborate on the last sentence in that, which is:

For these reasons we submit that enterprise awards should be restricted to closely linked employers.

Can you describe what you mean there by ‘closely linked’?

Mr Fetter —The concern is that at the moment enterprise awards can be made to cover an enterprise which may consist of multiple employers. In the case of the fast food industry, which we have highlighted in the submission, for instance, many of the head franchisors run an enterprise that consists of dozens if not hundreds of franchisees. It is arguable that they do run a single enterprise, but often the concern is that the franchisees have other businesses that they operate in tandem with the franchise arrangement. You might have, for instance, a McDonald’s franchisee of which the legal operator, the employer that operates the McDonald’s store, operates another store, whether that is another fast food business or a newsagent in the same street in a country town. The concern is that, if read literally, this provision that is proposed in the bill will allow the McDonald’s enterprise award, or the modern award, to apply to that franchisee in all of its operations even if it is outside the franchise anticipated by the award. The concern that is being raised by at least one of our affiliates is that the enterprise instrument modernisation process should: focus on the entities that are applying to have the instrument cover them, make sure that they really are either a single employer or very closely linked employers and be restricted to the type of business that is contemplated by the making of the modern award.

Senator JACINTA COLLINS —Another element that has been canvassed on this point is that it should also be all-encompassing—for instance, if an enterprise award is going to cover, let’s say, McDonald’s franchises, that it should cover all entities operating such businesses. Is that envisaged in your comment about closely linked employers as well?

Mr Fetter —That is right.

Senator JACINTA COLLINS —The gist of your argument is a bit like the earlier view that was expressed, which is that there should be a level playing field—that we should not be allowing for one level in the sector and then another for others that do not have the benefit of an enterprise award.

Mr Fetter —That is right, and it goes back to what Ms Bowtell said before about the intention being to create a modern award safety net that represents minimum standards for an industry. We have pointed out that it is unfair, first of all, to employers to allow unfair competition between them on the basis of labour costs. That is particularly the case where some employers are allowed to pay rates that are below what has been declared by the delegate of the parliament, Fair Work Australia, to be the minimum rates payable in that industry. The idea that particular businesses, especially very large businesses and franchises, can take advantage of these provisions seems to us to be very troublesome.

Senator JACINTA COLLINS —Thank you.

Senator FISHER —The minister’s directive to the Industrial Relations Commission in terms of award modernisation talks about not disadvantaging employees. If your concerns about the take-home pay provisions as set out in your submission were rectified by amending the legislation, would that mean that no employee would be disadvantaged as a result of the award modernisation process?

Ms Bowtell —It would depend on the rectification.

Senator FISHER —If it were rectified to address your five concerns.

Ms Bowtell —It is a bit hard to tell without seeing the transitional arrangements that the commission is going to put in place. That is the first thing I would say: we are still working with an incomplete canvas in this area. That may well ensure that no employee individually would be disadvantaged. It would not address some of the concerns that we have about award modernisation resulting in a lowering of the safety net in certain sectors, industries and occupations.

I think you had the ASU in here yesterday giving you some examples out of the private sector clerks award. You may well find that take-home pay orders, if remedied in the way that we have suggested, would satisfy the concerns about individuals who are employed at the moment, but it would not satisfy our concerns that the safety net for private sector clerks has been eroded by this process.

Senator FISHER —Thank you. Your submission talks about the failure of take-home pay orders to address non-financial disadvantage to employees, and you talk about changes to working hours and rosters. Are there any other non-financial ways in which an employee could be disadvantaged, as a result of the award modernisation process, that are not addressed by the bill?

Ms Bowtell —There are certainly—and, again, I think the ASU raised this in their material yesterday—non-financial elements of the award safety net, such as access to a dispute-settling procedure and access to consultation about significant change, which are not addressed through simply looking at the pay for the employee at the end of the week before award modernisation and the week after, and some of those things are probably beyond the scope of the bill but go more towards the way the AIRC has handled some of the particular industries and occupations by exempting employees from the application of certain award terms because of the quantum of earnings that they have.

Senator FISHER —So, by your answer and submission, there would be quite some changes necessary to ensure that an employee is not disadvantaged as a result of the award modernisation process?

Ms Bowtell —The primary place to ensure that people are not disadvantaged through award modernisation is in award modernisation. That is the primary place in which to make sure that the safety net is secure and relevant. It is a difficult process that the commission is going through. It has to preserve the status quo for employees and employers but modernise at the same time. That is a very difficult ask, but that is the primary place to do it. And the transitional arrangements will be very important to ensure that that happens. If that is done properly there will be little work for take-home pay orders to do. And we certainly believe that it is incumbent upon the government to send a very strong message to the commission that its intention to legislate for take-home pay orders is not an excuse to take its eye off the ball in making sure it sets a safety net which does not disadvantage employees.

Senator FISHER —My question is in respect of your final concern about take-home pay and the difficulty of proving a causative link between the results of award modernisation and a loss of take-home pay. You note that, indeed, a loss of take-home pay could be attributable to multiple causes, and your submission goes on to suggest an amendment in that respect. It is just before the heading 3.2 in your submission; I do not have the page number. You go on to recommend that the bill should clarify that an employer may still be liable to a take-home pay order if there are multiple reasons having resulted in a loss of take-home pay, so long as award modernisation was one of, you say, the ‘actuating reasons’ for their actions. In respect of the viability provisions—if I can call them that—in the bill, in terms of the prospect of some so-called relief to an employer facing the consequence of the award modernisation provisions: firstly, would you see the same causative problem, in terms of proof? And, secondly, what would the ACTU say of an amendment to those provisions, in respect of employers, that says an employer may, similarly, achieve relief, provided that award modernisation is one of the, in your words, ‘actuating reasons’ for threat to viability of the business?

Ms Bowtell —So you are talking about an incapacity-to-pay principle—how that might operate?

Senator FISHER —I am talking about the provisions of the bill, at this stage, and your contention, which is entirely conceivable, that a causative link would be difficult to prove in terms of take-home pay for an employee. Would there not be the same difficulty in proving a causative link, from an employer’s perspective, in respect of viability of the business? And, if so, would it not be consistent with your recommendation in respect of employees to also accept that there should be a consistent amendment in respect of employers to say that, if award modernisation is but one of the actuating reasons that results in threat to viability, that should be sufficient to provide an employer with relief?

Mr Fetter —Just while we flick through the legislation to make sure we are right about what provisions are in the bill, I wanted to make the point that I think many of the cries that are made by some employer groups about the disadvantage that award modernisation will occasion are at the very least overblown. The Restaurant and Catering Association in particular is very vocal in the press, claiming, we think misleadingly, up to 25 per cent increases in rates for people working in the hospitality industry, with particular reference to businesses that operate on the weekend and on Sundays. But we have done our own analysis, for instance, of the figures and I can provide this information in written form to the committee at a later point—

Senator FISHER —Thank you, Mr Fetter. Noting the limiting time—

Mr Fetter —If I could just finish my answer—

CHAIR —We are actually out of time and past it, so what I might do is ask you if you wish to respond in writing to the committee to answer those questions that Senator Fisher asked.

Ms Bowtell —I am not sure of the provision you are talking about in terms of the incapacity to pay provisions. I just need to check it. But I am very happy to get an answer to you by close of business today on that.

Senator FISHER —Thank you.

CHAIR —And if you want to provide the further analysis to the committee, we would appreciate that too. Thank you for your submission and your presentation to the committee today.

Ms Bowtell —Thank you.

[11.38 am]