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Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

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2016-2017

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

                                                                   

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

FAIR WORK AMENDMENT (REPEAL OF 4 YEARLY REVIEWS AND OTHER MEASURES) BILL 2017

 

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendment to be Moved on Behalf of the Government

 

 

 

 

(Circulated by authority of the Minister for Employment, Senator the Hon Michaelia Cash)

 

 

 

 

 

 

 



AMENDMENT TO THE FAIR WORK AMENDMENT (REPEAL OF 4 YEARLY REVIEWS AND OTHER MEASURES) BILL 2017

OUTLINE

The Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017 (the Bill) amends the Fair Work Act 2009 to respond to two recommendations of the Productivity Commission’s Final Report into the Workplace Relations Framework and two recommendations of the Hon Peter Heerey AM QC’s Report of Inquiry into Complaints about the Honourable Vice President Michael Lawler of the Fair Work Commission and Related Matters .

Schedule 2 to the Bill provides the Fair Work Commission with discretion to approve enterprise agreements despite minor procedural or technical errors, which were not likely to have disadvantaged employees (proposed new subsection 188(2)).

The amendment clarifies that for this discretion to apply employees must not have been disadvantaged by the errors, in relation to the procedural requirements in paragraphs 188(1)(a) or (b) or sections 173 and 174. Such requirements relate to the notice of employee representational rights and other steps required to be taken for employees to approve a proposed enterprise agreement.

The amendment reflects that the purpose of the procedural requirements is to ensure that employees have genuinely agreed to the terms proposed by their employer and that they have been informed of their right to be represented by a bargaining representative.

The amendment responds to a submission made by Professor Andrew Stewart to the Senate Education and Employment Legislation Committee on the Bill. Professor Stewart, though supportive of the proposed reform, expressed concern that the term ‘disadvantaged’ in proposed new subsection 188(2) was not sufficiently connected to employees’ ability to genuinely agree to the terms of a proposed enterprise agreement (see paragraph 3.8 and paragraph 1.9 of the Labor Senators’ additional comments in the Senate Committee’s report, tabled in May 2017).

 

 

 



FINANCIAL IMPACT STATEMENT

Nil



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Amendment to the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Bill 2017

The amendment to the Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of amendment to the Fair Work Amendment (Repeal of 4 Yearly Review and Other Measures) Bill 2017

Schedule 2 to the Bill provides the Fair Work Commission with discretion to approve enterprise agreements despite minor procedural or technical errors, which were not likely to have disadvantaged employees (proposed new subsection 188(2)).

The amendment clarifies that for this discretion to apply employees must not have been disadvantaged by the errors, in relation to the procedural requirements in paragraphs 188(1)(a) or (b) or sections 173 and 174. Such requirements relate to the notice of employee representational rights and other steps required to be taken for employees to approve a proposed enterprise agreement.

The amendment responds to a submission made by Professor Andrew Stewart to the Senate Education and Employment Legislation Committee on the Bill. Professor Stewart, though supportive of the proposed reform, expressed concern that the term ‘disadvantaged’ in proposed new subsection 188(2) was not sufficiently connected to employees’ ability to genuinely agree to the terms of a proposed enterprise agreement (see paragraph 3.8 and paragraph 1.9 of the Labor Senators’ additional comments in the Senate Committee’s report, tabled in May 2017).

Human rights implications

The amendment does not alter the human rights implications of the Bill as expressed in the Statements of Compatibility with Human Rights which accompany the Explanatory Memorandum for the Bill.

Conclusion

The amendment is compatible with human rights.

Minister for Employment, Senator the Hon Michaelia Cash



NOTES ON AMENDMENT

In these notes on the amendment, the following abbreviations are used:

the Bill

Fair Work Amendment (Repeal of 4 Yearly Reviews and Other Measures) Bill 2017

FWC

Fair Work Commission



Amendment 1 - Schedule 2, item 2, page 6 (line 18), at the end of paragraph 188(2)(b)

1.                   Schedule 2 to the Bill provides the FWC with discretion to approve enterprise agreements despite minor procedural or technical errors, which were not likely to have disadvantaged employees (proposed new subsection 188(2)).

2.                   The amendment clarifies that for this discretion to apply employees must not have been disadvantaged by the errors, in relation to the requirements mentioned in paragraph (1)(a) or (b) or the requirements of sections 173 and 174. Such requirements relate to the notice of employee representational rights and other steps required to be taken for employees to approve a proposed enterprise agreement.

3.                   The amendment reflects that the purpose of the procedural requirements is to ensure that employees have genuinely agreed to the terms proposed by their employer and that they have been informed of their right to be represented by a bargaining representative.

4.                   The amendment responds to a submission made by Professor Andrew Stewart to the Senate Education and Employment Legislation Committee on the Bill. Professor Stewart, though supportive of the proposed reform, expressed concern that the term ‘disadvantaged’ in proposed new subsection 188(2) was not sufficiently connected to employees’ ability to genuinely agree to the terms of a proposed enterprise agreement (see paragraph 3.8 and paragraph 1.9 of the Labor Senators’ additional comments in the Senate Committee’s report, tabled in May 2017).