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Tuesday, 4 June 2013
Page: 5056


Mrs ANDREWS (McPherson) (13:42): I rise to speak on the Fair Work Amendment Bill 2013. The bill before the House today proposes to amend the Fair Work Act 2009 in six areas. They are: amending the existing family-friendly arrangements provided under the act; amending the modern awards objective to provide a fair and relevant minimum safety net of terms and conditions; introducing new anti-bullying measures; amending right of entry provisions; amending the functions of the Fair Work Commission; and also providing some minor technical amendments.

This bill was referred to the House Standing Committee on Education and Employment on 21 March this year for inquiry. The reason for the referral was that 'The bill makes changes to the Fair Work Act that will have an impact on each employee and employer in Australia. It is important that the parliament be fully aware of this bill and identify any unintended consequences.' I agree that the bill makes changes to the Fair Work Act that will impact on each employee and employer, and that is why I support an inquiry into this bill so that employees, employers and their respective representatives can have the opportunity to comment and be heard on the proposed amendments. I am concerned that this bill is being hurried through, rushed through, parliament before the committee report on the inquiry has been finalised and tabled and therefore before members of the House have had the opportunity to review the report and consider the committee's recommendations.

There were 41 submissions made to the committee for this inquiry, and there was one 3½-hour hearing scheduled for Melbourne that took place on Friday, 24 May. The public hearing was conducted primarily as a series of roundtables with union, employer and community groups. I congratulate and thank all of the parties who made submissions, attended and presented at the public hearing. The transcript of that hearing is publicly available, as are the submissions to the inquiry.

With most inquiries conducted there are a wide range of views put in submissions, and the inquiry into the Fair Work Amendment Bill 2013 was no exception. Broadly, the ACTU and the CPSU appeared before the committee at the one public hearing that was held and supported the passage of the bill. The community representatives that appeared before the committee at the public hearing focused on issues relating to flexible working provisions, as well as parental leave and antibullying measures. I note that Carers Victoria spoke in detail about the significantly lower rates of workforce participation of carers compared to other Australians and made the point that this was rarely by choice.

The employer representatives that appeared before the committee raised serious concerns about the bill. Mr Stephen Smith, Director of National Workplace Relations for the Australian Industry Group, made the following opening comment to the committee:

We are very disappointed with the content of this bill. As the committee is aware, the Fair Work Amendment Bill 2012 implemented mainly technical changes to the Fair Work Act which neither unions nor employers particularly objected to. We had high hopes that this particular bill would address some well-recognised problems with the legislation and deliver a more productive, flexible and fair workplace relations system. Unfortunately the bill fails to address that. It is extremely lopsided, in our view, it does not even attempt to strike a balance. It expands the entitlements of employees and unions in numerous areas, and employers issues of concern are not addressed at all.

Mr Dick Grozier, Director of Industrial Relations with Australian Business Industrial and Director of Workplace Policy with the New South Wales Business Chamber, said:

… since this inquiry was established and the submissions were lodged, there have been a number of developments, and the most obvious of those is the report from the equivalent Senate committee.

He then goes on to say:

In case it is unclear, we remain of the view that the appropriate recommendation from this committee is that the bill not be proceeded with. In our view, it has been hastily drafted—and we think there are a number of signs of that in the bill, as we are adverted to in our written submissions. It has not been subject to an impact assessment, and we think that is a very important omission. It has not been subject to anything like proper consultation. In the main, where it draws upon or purports to draw upon recommendations either of the expert panel or of the House committee, the proposals are inconsistent with those recommendations. So it remains our view that the recommendation from this committee should be that the bill not be proceeded with.

Mr Daniel Mammone, the Director of Workplace Policy and Director of Legal Affairs with the Australian Chamber of Commerce and Industry, said:

… ACCI does not support the bill in its current form. Whilst a number of provisions could be supported, in the context of other amendments which would redress the existing problems identified by industry, in its current form it is simply unbalanced, and this has been the view of leading business organisations across Australia.

So three significant employer associations do not support the bill in its current form. Master Builders Australia also made a submission to the inquiry, and I note that MBA is a peak employer association for the building and construction industry and that building and construction is a major driver of our national economy. Locally, for my electorate of McPherson on the Gold Coast, our economy has been dependent on the building and construction industry for many, many years. Master Builders Australia said in its submission:

Whilst Master Builders supports measures to improve the operation of the FW Act—

the Fair Work Act—

the Bill's provisions will further compound the current statutory constraints on employers to structure their workplace to suit their business. This submission highlights that the changes which would stem from the Bill are not balanced, as they work against the viability of business and strengthen the role of unions. They do not provide any measures which enhance productivity. The selection of the chosen items for priority enactment is not based on any criteria that guided the Government's processes for reviewing the FW Act and hence, as indicated throughout this submission, the Bill should, at the least, be deferred.

They go on to say:

The Bill should be deferred until a properly considered comprehensive, productivity focused range of reforms are placed before Parliament. At the least, a fully formulated Regulatory Impact Statement should be prepared which objectively assesses the costs and benefits of the amendments.

I have serious concerns about process. As I have said, the bill was referred to a House standing committee for inquiry. Forty-one submissions were received. A half-day public hearing was held. The committee's report has not been finalised and tabled. Members have therefore not had the opportunity to consider the report or its recommendations, and that is because the report has not been finalised. And yet here we are today debating the bill. That is being done against a background of significant concerns being raised by peak employer associations.

I do not believe that the views of either employees or employers should be dismissed in a debate about workplace relations. I believe that the inquiry should be completed, the report tabled and members given the opportunity to consider the report and its recommendations before the bill is debated. Feedback from industry groups is not as positive as I am confident the government would like. I have already spoken about the views put by employer associations at the public hearing and referred to the submissions put by Master Builders Australia, but there is much more in the submissions. The National Farmers' Federation said in its submission:

The NFF is of the view that the proposed amendments are unbalanced, pro union and regressive. … The Bill if passed will put stress on farming businesses and risk jobs, job prospects and is likely have a detrimental effect on the Australian economy.

There is a common theme here, and it is that peak employer associations representing industry are of the view that this bill is not balanced.

Many have also said that the bill fails to deal with the recommendations that arose from the Fair Work review that was undertaken in 2011 and 2012. For example, the representative from AiG noted at the public hearing that in a number of areas the bill conflicts with the recommendations of the review, with the Australian Chamber of Commerce and Industry noting that the legislation continues to delay changes to the act in favour of amendments which were largely not recommended by the panel.

This leads into the next issue that was highlighted, which is that a regulatory impact statement was not drafted for this bill. A number of submissions point this out, questioning whether due process had therefore taken place. The lack of a regulatory impact statement deprives the community of the opportunity to look at a detailed assessment of the predicted impacts of the bill prior to its implementation, with Master Builders Australia noting:

… a fully formulated Regulatory Impact Statement should be prepared which objectively assesses the costs and benefits of the amendments.

This bill has been given an exemption from having to provide a regulatory impact statement, but, at the Senate inquiry, departmental officers could not provide any substantive reason for it being provided with this exemption. Considering the range of changes proposed under the bill, it is difficult to rationalise that such an analysis would not be needed.

This issue in turn leads to the effect that changes such as the ones outlined in the bill can have on businesses. At the public hearing, the representative from Australian Business Industrial and New South Wales Business Australia noted that the amount of time needing to be devoted to employment matters because of the complexities of the act creates an issue for business, further stating:

As one goes down the business size spectrum, this increasingly becomes an inhibition on employers from taking steps and often exacts quite a high personal cost on them because they become concerned about staffing problems that they do not seem confident to redress and also about not being able to take steps to benefit their business.

Later, the Australian Chamber of Commerce and Industry representative stated:

The problem with the legislation, and particularly this bill, is that it imposes a lot of impediments on businesses when they are making decisions about employing people and making decisions about what they can do about problems within their business.

One of the changes that has the potential to affect businesses is the proposed right-of-entry change. ACCI, in its submissions, noted:

Quite clearly, the existing right of entry regime is not the same as the previous laws which existed prior to the commencement of the Act in 2009 and the new proposals are both trying to fix issues as a result of these changes, but is also introducing new costs and problems on employers.

Other submissions to the inquiry outlined concerns related to changes that would make the default location for union meetings the lunch room, in the absence of an agreement between the union and the employer. Business SA, in its submission, said:

These amendments need to be seen for what they really are and that is an avenue to assist unions to recruit new members.

As part of the amendments unions will be given the right to hold discussions in the area where meal breaks are taken.

If this amendment to the Fair Work Act is made employees will have to sit and listen to a sales pitch about joining a union or leave the lunch room.

Surely employees are entitled to eat a meal without being potentially harassed about joining a union.

The Australian Mines and Metals Association makes this point in its submission:

Key among employers’ concerns about the Bill’s proposals in this area is freedom of association and the need to protect employees who have no desire to meet with unions or to have any intrusion into their rest time.

Another issue that was raised is the inclusion of penalty rates in the legislation. In the public hearing, the Australian Industry Group said:

Our view on penalty rates is that they are an issue that should not be addressed in legislation. They are an issue that should be left to the tribunal. Our problem with this bill is that it seeks to require that awards either contain penalty rates or puts criteria there that until now have not been there and have not been a problem.

This bill, as I have stated, does not reflect the points of the Fair Work Act review, the recommendations of which seem to have been put aside for consideration at another time, despite clear disappointment being voiced by industry groups. It is concerning that there was no investigation done into the potential impacts of this bill, considering the flow-on effect it may have for businesses and employees. The House committee inquiry should have been allowed to conclude and the report tabled and considered by members before this bill was debated.