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Monday, 26 November 2012
Page: 9663


Senator KIM CARR (VictoriaMinister for Human Services) (11:45): I would like to thank senators who contributed to this important debate on the Fair Work Amendment (Transfer of Business) Bill 2012. In particular, I want to acknowledge the important contributions of those who will actually be supporting the government's legislation.

The bill delivers on the government's commitment to introduce legislation to extend the existing transfer-of-business protections of the Fair Work Act 2009 to certain former state public sector employees whose transition to the national system was as a result of a transfer of business. The policy intention guiding this legislation is clear: the government does not accept that these employees should be worse off or that they should have their entitlements put at risk simply because their employer changes as a result of an outsourcing of work or an asset sale, but where their work stays the same.

The bill gives effect to this policy by ensuring that these employees generally retain the benefits of their existing terms and conditions of employment, where a transfer of business occurs between their former state employer and an employer covered by the national workplace relations system. The bill provides a more nationally consistent set of transfer-of-business protections for former state public sector employees. Employees in the Commonwealth, Victorian, Australian Capital Territory and Northern Territory public sectors are already covered by the transfer-of-business protections in parts 2 to 8 of the Fair Work Act. This bill simply extends these protections to certain public sector employees in the remaining jurisdictions: in New South Wales, Queensland, Western Australia, South Australia and Tasmania.

The bill does not seek to regulate how states conduct their own administrations. However, the Commonwealth is responsible for matters within the national workplace relations system, and this bill ensures that, when a transfer of business occurs between certain state public sector employers and an employer in the national workplace relations system, transferring employees will retain the benefits of their existing industrial instruments and have their hard-earned entitlements protected.

I note that some have criticised the bill for going too far, while others have said that the bill does not build in sufficient protections for former state public sector employees. To those who argue that the bill goes too far and will discourage new employers from hiring former state public sector employees, such as Senator Abetz has put to us in his contribution, I note that the recent post-implementation review of the operations of the Fair Work Act considered a number of submissions on the issues and was not convinced on the evidence before it that the transfer-of-business provisions had had that effect. To the contrary, the panel concluded that the scope for employers to determine the appropriate outcome for their business on application to Fair Work Australia provided sufficient flexibility. I note that the transfer-of-business provisions in parts 2 to 8 of the Fair Work Act already apply to transfers of business between certain public sector employers, including the Commonwealth, Victorian, Australian Capital Territory and Northern Territory governments and the national system employers. As the government has stated on many occasions, the bill is simply extending these protections to certain former state public sector employees in the remaining jurisdictions.

And to those who say that the bill does not go far enough: the government policy intent is clear, and that is to apply the current transfer-of-business provisions to former state public sector employees moving to the national workplace relations system through a transfer of business. Our view is that the bill strikes the right balance between in-practice employees' terms and conditions and the interests of employers in running their businesses efficiently. The government established the transfer-of-business framework currently in the Fair Work Act to ensure fairness and flexibility to both employers and employees and to replace the old, out-of-date and complex provisions.

The government has continued to listen to those and to consult with various stakeholders, including states and territories and unions and businesses on the provisions of the bill. As a consequence, the government will move a number of minor amendments to the bill. Before I go to those, I will deal specifically with the concerns of Senator Xenophon in regard to the transfer-of-business provisions in the Fair Work Act.

These were introduced by the government as part of the fair work reforms. The provisions are different to those previously in Commonwealth industrial law. They are designed both to broaden the circumstances where protections are provided to employees and to ensure flexibility and fairness to employees and employers by providing a clearer and simpler provision than those in the previous Commonwealth legislation. This is an extension of existing provisions and has come about as a direct consequence of an attempt to improve the old system that was in place under previous governments, including the Hawke-Keating governments.

The amendments that the government will move go to four broad categories. Firstly, the government proposes amendments to align more closely Fair Work Australia's powers to make orders in respect of a transfer of business within the scope of the bill with powers currently provided in the Fair Work Act. Secondly, the government proposes amendments to further clarify the coverage of the bill, which applies to certain former state public sector employees only and which does not extend to local government employees. These amendments reflect the intended coverage and the application of the bill as was announced by the minister.

Thirdly, there will be an amendment proposed to clarify the operation of the bill to ensure that the same rules that currently apply to transfer of business under the Fair Work Act in relation to the operation of the general protections provision are also applied to the transfer of business under the new proposed provisions of this bill. Finally, there will be a number of consequential amendments that deal with cross-referencing and numbering.

The bill establishes a more nationally consistent set of rules governing the transfer of business, based on ensuring protections for certain former state public sector employees whose jobs are outsourced and who end up doing the same job for a different employer. The government is very clear that it respects the work of 1.7 million public sector workers around Australia, and it simply cannot condone public servants in some states receiving fewer protections when there is a transition into the national system as a result of a transfer of business than those in other jurisdictions who already have the benefits of these protections. I commend the bill to the Senate.

Question agreed to.

Bill read a second time.