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Tuesday, 5 November 1996
Page: 5098


Senator CAMPBELL (Parliamentary Secretary to the Minister for the Environment and Parliamentary Secretary to the Minister for Sport, Territories and Local Government)(5.49 p.m.) —I move:

(19)   Schedule 5, item 9, page 25 (line 17) to page 26 (line 34), omit section 89A, substitute:

89A Scope of industrial disputes

   Industrial dispute normally limited to allowable award matters

(1)   For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):

   (a)   dealing with an industrial dispute by arbitration;

   (b)   preventing or settling an industrial dispute by making an award or order;

   (c)   maintaining the settlement of an industrial dispute by varying an award or order.

   Allowable award matters

(2)   For the purposes of subsection (1) the matters are as follows:

   (a)   classifications of employees and skill-based career paths;

   (b)   ordinary time hours of work and the times within which they are performed, rest breaks, notice periods and variations to working hours;

   (c)   rates of pay generally (such as hourly rates and annual salaries), rates of pay for juniors, trainees or apprentices, and rates of pay for employees under the supported wage system;

   (d)   piece rates, tallies and bonuses;

   (e)   annual leave and leave loadings;

   (f)   long service leave;

   (g)   personal/carer's leave, including sick leave, family leave, bereavement leave, compassionate leave, cultural leave and other like forms of leave;

   (h)   parental leave, including maternity and adoption leave;

   (i)   public holidays;

   (j)   allowances;

   (k)   loadings for working overtime or for casual or shift work;

   (l)   penalty rates;

   (m)   redundancy pay;

   (n)   notice of termination;

   (o)   stand-down provisions;

   (p)   dispute settling procedures;

   (q)   jury service;

   (r)   type of employment, such as full-time employment, casual employment, regular part-time employment and shift work;

   (s)   superannuation;

   (t)   pay and conditions for outworkers, but only to the extent necessary to ensure that their overall pay and conditions of employment are fair and reasonable in comparison with the pay and conditions of employment specified in a relevant award or awards for employees who perform the same kind of work at an employer's business or commercial premises.

(3)   The Commission's power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award.

   Limitations on Commission's powers

(4)   The Commission's power to make or vary an award in relation to matters covered by paragraph (2)(r) does not include:

   (a)   the power to limit the number or proportion of employees that an employer may employ in a particular type of employment; or

   (b)   the power to set maximum or minimum hours of work for regular part-time employees.

(4A)   Paragraph (4)(b) does not prevent the Commission from including in an award:

   (a)   provisions setting a minimum number of consecutive hours that an employer may require a regular part-time employee to work; or

   (b)   provisions facilitating a regular pattern in the hours worked by regular part-time employees.

(5)   The Commission may include in an award provisions that are incidental to the matters in subsection (2) and necessary for the effective operation of the award.

   Exceptional matters may be included in industrial dispute

(6)   Subsection (1) does not exclude a matter (the exceptional matter ) from an industrial dispute if the Commission is satisfied of all the following:

   (a)   a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter;

   (b)   there is no reasonable prospect of agreement being reached on the exceptional matter by conciliation, or further conciliation, by the Commission;

   (c)   it is appropriate to settle the exceptional matter by arbitration;

   (d)   the issues involved in the exceptional matter are exceptional issues;

   (e)   a harsh or unjust outcome would apply if the industrial dispute were not to include the exceptional matter.

   Anti-discrimination clause

(7)   Nothing in this section prevents the Commission from including a model anti-discrimination clause in an award.

Note:   A model anti-discrimination clause was established by the Commission in the Full Bench decision dated 9 October 1995 (print M5600).

   Interpretation

(8)   In this section, outworker means an employee who, for the purposes of the business of the employer, performs work at private residential premises or at other premises that are not business or commercial premises of the employer.

This amendment proposes the omission of section 89A and the substitution of new section 89A. Subsection 89A(2) adds two new allowable award matters—superannuation, at paragraph 89A(2)(s), and protection of outworkers, at paragraph 89A(2)(t). Three existing allowable award matters are amended. Proposed paragraph 89A(2)(a) is amended to include skill based career paths and proposed paragraph 89A(2)(b) is amended to include specific reference to rest breaks, notice periods and variations to working hours. Proposed paragraph 89A(2)(g) is amended to include cultural leave, which covers such leave as ceremonial leave for Aboriginal and Torres Strait Islanders.

Expansion of the allowable award matters to include superannuation and protection for outworkers strengthens the award safety net. Other amendments clarify existing allowable award matters by including variations to working hours, rest breaks, skill based career paths and cultural leave. The allowable award matters are wide ranging and will permit all key entitlements to be included in awards, thereby providing a basis for comprehensive safety net protection.

Each award need not include provisions dealing with every allowable matter. Not all matters will be relevant to all circumstances. The point is, however, that there is an extensive range of key entitlements which may be the subject of an industrial dispute and be dealt with by the commission exercising its arbitral powers.

Opponents of the government's legislation have engaged in a scare campaign wrongly asserting that a number of the matters will not be allowable award matters. While I do not wish to get into a protracted debate about whether or not particular matters come within the scope of allowable award matters—


Senator Forshaw —Why not?


Senator CAMPBELL —Because we have had quite extensive debate on that already. The government has included accident make up pay within proposed new paragraph 89A(2)(j) which covers allowances. Secondly, paid maternity leave, proposed new paragraphs 89A(2)(c) and 89A(2)(h), which provide for rates of pay and maternity leave respectively, would permit award provisions dealing with paid maternity leave.

While some existing award matters are not covered, for the most part, these are matters that would be more appropriately addressed through agreements. It is also important to note that, in exceptional circumstances, non-allowable matters can be arbitrated. If in particular circumstances the exclusion of a non-allowable award matter from the scope of arbitration would result in a harsh or unjust outcome, arbitration will be possible.

As indicated in the proposed amendment circulated earlier, the government and the Australian Democrats propose that subsection 89A(3) be amended to omit the words `or vary'. This is a technical amendment to better reflect what has been the government's stated intention in this area; that is, that the timing and process for the conversion of paid rates to minimum rates awards should be a matter for the commission. It is the government's expectation that, over time, paid rates awards will become minimum rates awards, with actual wages and conditions being a matter for enterprise agreements. Under the general award system established under section 89A, there would be no new paid rates awards. The Australian Industrial Relations Commission will apply the same rules to all existing awards, be they minimum or paid rates, in their background. This includes the application of award simplification to all awards in the same way.

In relation to regular part-time employment, new provisions are added to free up access to part-time employment and enhance protection for part-time employees. New subsection 89A(4)(a) makes it clear that awards may specify a minimum number of consecutive hours that a regular part-time employee may be required to work or include provisions facilitating a regular pattern in the hours worked by such employees.

As mentioned earlier, the amendments include a definition of the term `regular part-time employee'. This is an employee who has reasonably predictable hours of work and receives on a pro rata basis equivalent pay and conditions to those specified in an award or awards for full-time employees who do the same kind of work. These amendments reinforce our desired emphasis on the regularity and predictability of working hours for part-time employees and reinforces the distinction between casual and part-time employment.

Amendments 26 and 30 also deal with regular part-time employment. Proposed subsection 143(1)(c) and items 43 and 45 require the commission, as part of the award simplification process, to include, where appropriate, award provisions enabling regular part-time employment. They are the incidental and necessary provisions.

Subsection 89A(5) is amended to provide that awards may include provisions which are incidental to the allowable award matters and necessary rather than essential, as previously proposed, for the effective operation of the award. A matter that is included in an award under this provision must be both incidental to and allowable and necessary for the effective operation of the award. This would allow the inclusion in awards of provisions that are necessary for the effective operation of an allowable award matter but would ensure that the scope of allowable award matters is not expanded.

In relation to exceptional matters orders, subsection 89A(1) limits the AIRC's arbitral and award making powers to the specified allowable award matters. However, the government and Democrats recognise that there may be some exceptional non-allowable matters in relation to which, in the absence of the parties being able to reach agreement, it may be appropriate for the commission to exercise its arbitral powers.

New subsection 89A(6) provides for limited access to arbitration in relation to exceptional non-allowable award matters in relation to which the parties are unable to reach agreement. Before resorting to arbitration, the commission must be satisfied that, firstly, a party to the dispute has made a genuine attempt to reach agreement on the exceptional matter and that there is no reasonable prospect of agreement being reached by conciliation; that is at paragraphs (a) and (b). Secondly, it must be satisfied that it is appropriate to settle the matter by arbitration; that is, the matter would not be better dealt with, for example, through agreements at the workplace or enterprise level and/or the matter is not otherwise dealt with by legislation; that is at paragraph (c). Finally, the issues involved must be exceptional and there would be a harsh or unjust outcome if the matter were not settled by arbitration; that is found at paragraphs (d) and (e).

Matters relating to the orders which may be made in connection with exceptional matters are set out in amendment 23, which proposes new subsection 120A. These provisions are designed to act as a safeguard against harsh and unjust outcomes, which might result if an exceptional matter could not be resolved by arbitration. At the same time, they make clear that their application will be confined to exceptional cases. This is consistent with the legislation's shift in focus to determining matters by agreement at the workplace or enterprise level, with awards providing a safety net of minimum conditions.