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Wednesday, 16 September 2015
Page: 6942


Senator MUIR (Victoria) (11:01): I rise to make a contribution to the Fair Work Amendment Bill 2014. These amendments are designed to respond to a number of outstanding recommendations from the Fair Work Act Review in 2012 and to implement part of the coalition's 2013 election commitments. The more substantive amendments concern greenfield agreements, union right of entry and individual flexibility arrangements in modern awards and enterprise agreements.

I will say at the outset that I do not support this bill in its current form. I do, however, want to put on the record that I think some improvements can be made to the Fair Work Act, which is why I am supporting the second reading in order to debate the amendments that have been circulated.

A lot of the correspondence that my office has received relates to the amendments to individual flexibility arrangements, or IFAs, which were introduced in 2009. An IFA is a written agreement used by an employer and an employee to change the effect of certain clauses to their award or registered agreement. It is used to make alternative arrangements that suit the needs of the employer and employee. At page 106 of the 2012 review report, the panel noted:

Many employers submitted that a return to statutory individual agreements is essential to meet their concerns about achieving individual flexibilities in the workplace. Similarly, many unions submitted that IFAs should not be part of the Fair Work system. We are not persuaded by either of these submissions. The impact of statutory individual agreements was perceived to be a major problem with Work Choices. The FW Act specifically sought to address this. The FW Act, however, carried the concurrent objective of providing for individual flexibilities. IFAs were intended to provide these individual flexibilities while maintaining protections for employees. We have therefore considered the operation of IFAs with these two key objectives in mind.

The submissions we received indicated that neither employers nor unions are happy with present arrangements concerning IFAs in agreements.

It seems, then, that there needs to be some tweaking to how IFAs operate in today's workplace, but as legislators we need to tread very carefully.

I have been a low-paid worker and I know what it is like to live from one pay to the next. I cannot and will not support any amendments to the current IFA agreements where there is a risk that unsuspecting employees will lose benefits or will be worse off. I note that the employee must be better off overall and that the employees cannot be forced into signing an IFA, but I am concerned that there are not sufficient safeguards to protect vulnerable workers who may be taken advantage of.

In addition to these concerns, there are two recommendations from the 2012 review in relation to the IFAs that are absent. One was the omission of the words: 'relatively insignificant, and the value of the non-monetary benefit is proportionate'. This has attracted criticism from the opposition and the ACTU as it acts as a safeguard to ensure that, if a monetary benefit is being traded away, the value of that benefit must be relatively insignificant and proportionate in value. The other omission relates to the IFA being lodged with the Fair Work Ombudsman. These omissions are concerning and why I am moving an amendment to oppose part 4 of this bill. I will also be moving an amendment to oppose parts 2, 3, 4, 6, 8 and 9 of the bill.

I would like to speak about the issues surrounding greenfield agreements and examine what the Fair Work Act Review Panel said in 2012. Many employers submitted to the review that there needed to be some form of determination or arbitration by Fair Work Australia, as it was then, in respect of greenfield agreements. The ACTU, in response to these submissions, suggested that this approach would not be consistent with international obligations for minimal interference in collective bargaining or the objects of the Fair Work Act. The ACTU make a very good point. Collective bargaining is viewed as a fundamental human right under international law by the United Nations and the International Labour Organization, and any reform that may have a negative impact on collective bargaining must be scrutinised closely.

At a minimum, I believe that the good faith bargaining requirements should apply to negotiations for greenfield agreements and I find it hard to believe that this requirement was not there in the first place—I find it very hard to believe. The most contentious issue, and it is one that I have discussed widely with my crossbench colleagues, relates to recommendation 30 of the Fair Work Act Review Panel, which is as follows:

The Panel recommends that the FW Act be amended to provide that, when negotiations for a … greenfields agreement have reached an impasse, a specified time period has expired and FWA conciliation has failed, FWA may, on its own motion or on application by a party, conduct a limited form of arbitration, including 'last offer' arbitration, to determine the content of the agreement.

The Education and Employment Legislation Committee stated:

Some submitters, including some employee organisations criticised some of the measures in Part 5, arguing the amendments would allow employers to commence bargaining procedures implemented by clause 178B and would in effect 'count down' the clock to circumvent a proper bargaining process. Other witnesses and submitters rebutted these claims, arguing the inclusion of the 'good faith bargaining' provisions, together with the review process outlined would prevent anything other than genuine good faith negotiations from taking place.

I have carefully considered this issue and have arrived at the view that there needs to be some changes to the way greenfields agreements operate under the Fair Work Act. I am of the view that there needs to be a solution which will resolve stalled negotiations and see projects get off the ground. If the opposition are not happy with the solution currently before the Senate, then I encourage them to move amendments so that they can be debated.

In conclusion, I believe that the amendment co-sponsored by Senators Xenophon, Day, Lazarus, Madigan, Wang and myself, and the amendment that I will be moving, reflect a balanced and constructive approach. There will be a chance for the Senate to debate these amendments and I look forward to listening to that debate.