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Thursday, 18 June 2009
Page: 6493

Mr McCLELLAND (Attorney-General) (9:05 AM) —I move:

That the amendments be agreed to.

At the last election the Australian Labor Party promised the Australian people that we would get rid of Work Choices and replace it with a fair and balanced workplace relations system. This new system, based on the newly enacted Fair Work Act 2009, comes into effect on 1 July this year and will be fully operational by 1 January 2010. Provisions to ensure a smooth, simple and fair transition to the new system while providing for certainty in employment arrangements are set out in the two transitional and consequential bills, which were passed by the House on 2 June. These two bills are the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 and the Fair Work (State Referral and Consequential and Other Amendments) Bill 2009. The Senate has now passed these two bills.

The Fair Work (State Referral and Consequential and Other Amendments) Bill was passed without amendment. The Fair Work (Transitional Provisions and Consequential Amendments) Bill has also been passed by the Senate but with a number of amendments. The House now has to consider these proposed amendments. First, I remind the House that the government accepted amendments in the Senate to the substantive Fair Work Bill where they were in accord with Labor’s commitment to the Australian people in Forward with Fairness and improved the operation of the legislation. The government will take the same approach in relation to these bills and, accordingly, as well as a number of amendments moved by the government we will be accepting the two amendments moved by Senator Xenophon and passed by the Senate.

I now briefly outline for the House the amendments moved by the government in the Senate. In respect of unfair dismissal, during the Senate debate on the Fair Work Bill the government made a commitment to Senator Fielding that, until 1 January 2011, the threshold used to define a small business for the purpose of applying the unfair dismissal arrangements would be less than 15 full-time equivalent employees. The amended provisions now before us reflect that commitment. The calculation of the number of full-time equivalent employees is based on the number of ordinary hours of an employer’s employees over the previous four weeks, including periods of authorised leave, whether that was paid or unpaid. At Senator Fielding’s request, it was agreed that the ordinary hours of employees on parental leave are excluded where that employee has been on parental leave for more than four weeks. From 1 January 2011, the threshold will be based on a simple headcount of employees as provided for in the Fair Work Act. The government has also made a commitment to Senator Fielding to add a further clause to the objects of the Fair Work Act that acknowledges the special circumstances of small and medium sized employers, and this has been done.

The amendments moved by the government and passed by the Senate are intended to improve and clarify a small number of provisions in the bill. In respect of ballots, the bill originally provided that protected action ballots and authorisations under the Workplace Relations Act will be of no effect from 1 July 2009. A government amendment passed by the Senate now allows limited preservation of Workplace Relations Act protected action ballot authorisations after 1 July 2009 on application by a bargaining representative to Fair Work Australia. This will mean that employees and unions who are midway in an industrial campaign will be able to continue to rely on a secret ballot authorisation across the 1 July bridging period avoiding the cost, delay and inconvenience of running a new ballot process.

There are also a number of government amendments passed by the Senate which are intended to further assist state and federally registered organisations to rationalise their affairs and simplify their operations across multiple jurisdictions. These amendments include changes to the provisions allowing federal organisations to extend their eligibility rule to reflect the broader rules of an equivalent state association. There are also changes to ensure that settled demarcations are not reopened by allowing Fair Work Australia to make a federal representation order that reflects a state representation order in situations where a federal organisation has altered its eligibility rules to reflect those of an equivalent state association.

Finally, the list of Senate amendments contains a number of small technical and moderate changes which the government introduced in the Senate. These include provisions for the Federal Court or the Federal Magistrates Court to have the discretion to extend, where appropriate, the 14-day time limit in relation to certain general protection and unlawful termination court applications.

Two additional amendments were moved by Senator Xenophon that the government is also prepared to accept. The first amendment seeks to set out an approach that Fair Work Australia may take when considering an application to resolve the uncertainty or difficulty under item 26 of part 5 of schedule 3 to the bill relating to the interaction between a transitional instrument and the NES. The second amendment adds additional factors to be considered in the award modernisation process and is expressed substantially in terms already set out in the modern awards object in section 134 of the Fair Work Act 2009. Accordingly, the government accepts the amendment.

The government will accept the amendments to the Fair Work (Transitional Provisions and Consequential Amendments) Bill 2009 made by the Senate. The list of amendments that we are now considering deserves to be approved by the House because the changes are all consistent with, and help to promote, the government’s overarching commitment to fairness, balance and flexibility in Australian workplaces. I commend these amendments to the House.