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Wednesday, 16 September 2015
Page: 7049


Senator KETTER (Queensland) (18:01): I rise to continue my contribution in opposition to the Fair Work Amendment Bill 2014. Avid followers of Senate proceedings would recall that, prior to ceasing my comments on the last occasion, I was going through the shameful episode which followed the coalition government's Work Choices legislation. I was also highlighting some of the dangers associated with allowing unscrupulous employers off the leash and allowing them to circumvent award provisions. The Work Choices AWAs were a lesson to us that whenever we consider providing opportunities for employers to circumvent award provisions, we should always ensure that there are appropriate safeguards.

I am under no illusions about the changes to the individual flexibility arrangements. I believe that this is a backdoor way by this government to attack the penalty rates of workers. The workers that I am particularly concerned about are workers who are vulnerable, who are casual employees, who are women, who are children. I am here to talk particularly about workers in the retail industry who have, as I have indicated, been the subject of some of the most egregious examples of abuse through the Work Choices system. It is not just a figment of my imagination. In fact, the Minister for Employment, Senator Abetz, has actually called this issue out. He has made it very clear in media statements that this legislation and particularly these changes to individual flexibility agreements are designed to ensure that workers have the opportunity to trade penalty rates for things such as flexible working hours. I refer to TheAustralian Financial Review article from February of last year. It is very much on the record that penalty rates are really at the heart of the changes that are being made here.

Labor's Fair Work system is fair and equitable for both parties and it is already in place across the majority of enterprise agreements in Australia. In fact, the Fair Work Commission Expert Panel has cited data that demonstrates that the majority of enterprise agreements already provide for what could be described as flexible working arrangements. The whole purpose of enterprise bargaining is to enable workers, usually through their representatives such as their relevant trade union, to sit down with their employer to come up with an enterprise agreement that provides for certain flexibilities. As a former official of our nation's largest union, the shop assistants union, I have experienced the process of negotiating enterprise agreements and listening to employers, both large and small, talk about how they have an interest in providing some flexible conditions. I should make the point that there are very many responsible employers out there who want to do the right thing but our system is such that we must protect vulnerable employees against potential abuse by unscrupulous employers.

The amendments proposed by this government in relation to IFAs reinforce why, when it comes to looking at what this government does, we need to examine the detail very closely. The government is unreasonably proposing that a key safeguard be abandoned when it comes to what can be traded through an individual flexibility agreement. I know that other Labor senators have touched on this point but this is something that I feel extremely passionate about. It goes to the recommendation from the expert panel that, if a non-monetary benefit is being traded for a monetary benefit, the value of the monetary benefit foregone must be relatively insignificant and the value of the non-monetary benefit is proportionate. Despite this clear recommendation from the expert panel, which gave a great deal of consideration to these matters, these clear prescriptions of relative insignificance and proportion are missing from this government's amended bill. That the full recommendation is missing is an alarming reflection of this government's approach to workplace relations and I have already indicated that I believe it reveals the genuine intention behind the construction of this provision, that is, that penalty rates are very much in the firing line in relation to these changes.

I am disappointed that the government seems to be adopting a misleading approach in respect of this provision, because one is being led to believe that the only way in which flexible working relationships can be implemented at the workplace level is through the provision of individual flexibility agreements, when nothing could be further from the truth. I have already instanced the fact that enterprise bargaining negotiations can deal with this issue, but there are also amendments to the Fair Work Act which have led to a situation where employees are able to access and get the benefit of flexible working arrangements without the need to trade off conditions. Employees are eligible to request flexible working arrangements if they are a parent or they have responsibility for the care of a child who is of school age or younger, if they are a carer, if they have a disability, if they are 55 or over, if they are experiencing violence from a member of the employee's family or if the employee provides carer support to a member of their immediate family.

Employers who receive a request for flexible working arrangements must seriously consider that particular request, but may refuse on reasonable business grounds, so it is not necessarily a guarantee of achieving flexible working arrangements. But, in the same instance, an IFA also requires agreement on both sides for a change to be made.

Some of the common provisions which are implemented through this other stream for accessing flexible working arrangements are changing starting and finishing times, part-time work or job sharing, working more hours over fewer days, working additional hours to make up for time taken off, taking rostered days off in half-days or more flexibly, time off work instead of overtime payments, or changing the location of work or the need to travel to work—for example, working from home. These are flexible arrangements which are available under Labor's amendments to the Fair Work Act. They are available to workers without the need for them to trade off conditions, by virtue of accessing individual flexibility agreements.

It is of concern to me—and when we talk about individual flexibility agreements we need to understand this—that there is a very significant power imbalance in the workplace. In the industries that I have talked about, that power imbalance is particularly evident. I talked about the vulnerability of casual employees and the vulnerability of women and children working in a situation where their employer dictates to them many of the aspects of their employment. This is a major concern. One should also understand that many of the individual flexibility agreements that we have seen to date are not necessarily bespoke, in the sense that there is evidence to suggest that they are tailored by the employer to suit the employer. There are in fact pro forma IFAs that are being distributed.

I call on the Senate to reject this legislation. It is fundamentally unfair.