The PRESIDENT (Senator the Hon. Sue Lines ) took the chair at 09:00, made an acknowledgement of country and read prayers.
That the following bills be considered at the time for private Senators' bills this week: the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 today and the Commonwealth Electoral Amendment (Banning Dirty Donations) Bill 2022 on Thursday 1 December.
Fair Work Amendment (Equal Pay for Equal Work) Bill 2022
At ACC there was a worker on labour hire working beside another worker, and there was a $500-a-week difference. We see labour hire companies not even paying the award in a lot of instances. Even if they do pay the award, typically our agreements would be 20 per cent or 30 per cent higher than the award, so those workers, even if they did receive the award rates of pay, would be on 20 per cent to 30 per cent less than what the local worker would be receiving.
Obviously there's the difference in pay, but then we don't get sick leave, we don't get miscellaneous leave, we don't get carers leave and we don't get things like domestic violence leave. Or if somebody close to you dies, there's no leave like that. So essentially every day, depending on what's happening in your life, you make the choice, 'Am I going to get paid today?'—compared with what else is happening in your life.
The increased use of labour hire, without particular reference to jobs performed or the duration of employment, appear to have blurred the distinction between labour hire employees and those permanently engaged by the host employer. Indeed, it may also be contributing to the underreporting of labour hire employee numbers, with many workers who have been persistently employed by labour hire firms identifying as employees of an industry, rather than a labour hire firm.
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
I have been living on poverty on Centrelink payments, Austudy, Newstart and JobSeeker since leaving high school almost nine years back. I have never been able to afford housing that meets my needs as a disabled person with trauma from multiple domestic violence situations from various cohabitors. I can barely afford anywhere to live at all, actually, and the fact that I am once again likely having to find a place to live with current prices within my greater area starting at 70 per cent of the full JobSeeker payment is soul crushing.
I spend hundreds of dollars a month on medication and medical equipment I need to live on a day-to-day basis. I can't afford to see specialists for things like my ADHD or autism. I can barely afford basic foods. Almost any meat I buy is nearly off, any veg frozen, any snack half price or made from scratch. Almost all of my money goes directly to rent, bills, food and medical. The paltry leftovers aren't enough to keep my car on the road. I have to ask for help pretty much each year to cover CTP et cetera. (Also, almost every job I have ever applied for has specifically stated that applicants need a car, so people on JobSeeker are literally priced out of being able to work.) New clothes are cast-offs from friends or the clearance section at an already cheap store. I have never been able to buy my own phone—which, by the way, is needed just to access Centrelink payments, and an up-to-date phone with reasonable technical specs is a necessity for the vast majority of jobs I've worked or applied for.
COVID supplements—which merely raised me to around the poverty line, not even properly out of poverty—changed how I could live and feel for about a year. I didn't have to count every cent to make sure it would last two weeks till next pay. I was able to get medical care I desperately needed to get but couldn't before afford. Even then, though, I had to rely on the goodwill of the specialists to charge much less than the usual rates. I could afford car service and registration without having to beg others for help. I felt vaguely human and part of society for a brief time. My mental health, despite the turmoil of the time, had never been better.
I would like to continue to take the medications that allow me to get up of a morning and do anything other than stare into the distance. I'd like to be able to afford taking any of the jobs I have been applying for, in industries important to Australia but currently struggling for workers. I would like to be able to afford glasses that don't give me a headache. I'd like to be able to afford chicken that I don't have to immediately take home and sniff and hope it's not gone bad. I'd like a lot of things that you and so many take for granted as part of your everyday lives and would cost you and Australia so very little. I just want to be human again. Is that so much to ask?
Currently, I am completely burned out and have been for at least five years. Five years ago, I had a 15-year-old in and out of hospital and in a wheelchair. I also had a 13-year-old living with ME/CFS and at school part-time, when he wasn't getting a cold that left him in bed for six weeks at a time. As a single parent, I was also working 30 hours a week, twice the number of hours required, yet still needing income support. I had a breakdown that year and have never recovered.
I lost my job when my bosses retired before lockdown in 2020. When the COVID supplement was introduced, I was able to pay my rent, bills and provide for my kids. The younger one was bedbound with ME/CFS. My second job was down to an hour a week.
Once my youngest turned 18, just before Christmas, I lost family tax benefit and child support as well as JobSeeker being back to the normal rate. I still have the casual job that varies a lot during the year, from three hours a week to 25 hours a week. I had another one that came to an end recently.
This year, I was diagnosed with autism and ADHD. My younger kid, who still lives at home, was also diagnosed with autism. This kid is still mostly bedbound with ME/CFS too. I can't in good conscience subject him to the torture that is mutual obligations, as this will send his health backwards.
I have been dealing with job search agencies & mutual obligations on and off for over 20 years, since I was fired for being pregnant. Not once have they helped me get a job. Instead, I have been advised to straight out lie to potential employers about my circumstances!
I am worried about how I will continue to pay rent as it's $10 a day more than JobSeeker… however there are no rentals in the area, cheaper or otherwise. Both my son and I have high health needs and I'm still completely burned out.
JobSeeker needs to be raised so that I can take care of my health, and my kids health, keep a roof over our heads, pay our bills, as well as have a better chance of finding employment and other opportunities to bring in an income.
The Fair Work Act delivers on the Rudd Government's promise for fair and balanced laws that will allow workplaces to become more productive and competitive without stripping away basic pay and conditions.
The Fair Work Act has enterprise bargaining, in good faith, at its heart. Enterprise level bargaining will be the primary means of driving future workplace improvements and productivity.
The new workplace relations system is designed to balance the needs of employees and employers to ensure Australia is competitive and prosperous, without taking away basic employment rights and guaranteed minimum standards.
… the bill will see a return to industry-wide pattern deals and entrench sector-wide strike action that will be damaging to workplaces and the broader Australian economy.
The value of estimates hearings in improving accountability and probity of government has long been widely recognised. The hearings allow apparent problems in government operations to be explored and exposed, and give rise to a large amount of information which would not otherwise be disclosed. They have come to be recognised as a major parliamentary institution of accountability.
That the Senate take note of the answers given by ministers to questions without notice asked today.
Personally, I am more ambitious than those opposite as to what I would like to see our emissions reduction target be. However, I am not blind to reality, unlike those opposite. I believe we need to be as pragmatic as we are ambitious.
Countries that reduce production of fossil fuels, under the assumption that renewables can quickly replace them, face substantial economic and geopolitical risks.
That the Senate take note of the answers from the Minister representing the Minister for Home Affairs (Senator Watt) to questions without notice asked today by Senator Cox, relating to the Middle Arm Sustainable Development Precinct, and me, relating to asylum seekers.
That leave of absence be granted to Senator Ayres for today, for personal reasons.
That leave of absence be granted to Senator Thorpe for 30 November 2022, for personal reasons.
That, in accordance with subsection 10B(2) of the Health Insurance Act 1973 , the Senate approves the Health Insurance (Extended Medicare Safety Net) Amendment (Indexation) Determination 2022, made under subsection 10B(1) of the Act on 7 November 2022 [F2022L01458].
Education and Other Legislation Amendment (Abolishing Indexation and Raising the Minimum Repayment Income for Education and Training Loans) Bill 2022
That the following bill be introduced: A Bill for an Act to amend the law relating to higher education, vocational education and training, social security and student assistance, and for related purposes.
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
Today I introduce the Education and Other Legislation Amendment (Abolishing Indexation and Raising the Minimum Repayment Income for Education and Training Loans) Bill 2022 to tackle the student debt crisis.
Let me say right at the start, education is a basic human right. It is not a privilege. TAFE and University should be fully funded by the government and should be fee-free for everyone, whether you are leaving school, changing careers, retraining later in life or looking to gain new skills and knowledge.
Under the current system, students come out of university and TAFE saddled with tens of thousands of dollars of study debt that can take them decades to pay off. More than three million people in Australia are shackled with a total of around $74bn in HELP debt alone. More than 1.5 million of those people have debts greater than $20,000. This is unsustainable and wholly unfair. That's why we went to the last election with a policy to cancel all student debt.
We are in a cost of living crisis. Housing costs have skyrocketed, adding to this burden of study debt. This is having an enormous impact on people's lives, especially young people and women who have borne the brunt of the pandemic and are now bearing the brunt of the cost of living crisis due to rising rents, insecure work and stagnant wages.
The LNP government's terrible Job-ready graduates package that hiked up Uni fees has only made things worse. Exacerbating the problem is the fact that the Coalition government also passed legislation which significantly lowered the minimum repayment income for student loans and linked indexation of income-contingent student loans to CPI.
It's no small problem, millions of people are impacted, and it's not one we can afford to ignore any longer as inflation drives up student debt and the steep cost of living bites.
Something needs to be done, and it needs to be done now.
My bill gives this Parliament the opportunity to do just that.
While, ideally, all student debt should be wiped, this bill is a clear and immediate step to start tackling the student debt crisis while providing cost of living relief to those with a study loan as we work towards the abolition of all student debt and a future where TAFE and university are free for all.
There are two elements to this bill, which will, together, deliver cost of living relief to people with study debts from July next year.
First, the bill immediately halts indexation of all study loans. Currently student debt is indexed by CPI on 1 June each year.
This June, with inflation skyrocketing, a 3.9% CPI increase was applied to all student debt, adding more than $900 to the average student debt. For many students, that figure was much higher.
3.9% was the highest indexation rate in a decade. Inflation is at 7.3% now and it has not yet peaked, according to forecasts it's on track to be even worse in 2023. This is such bad news for anyone with a student debt. As the Sydney Morning Herald reported this month "This could mean an increase of nearly $2000 for someone with an average HECS debt of $23,685. Ouch."
Ouch, indeed!
People with a student debt are telling me this:
This year my debt went up by more than the compulsory payments reduced it by. Paying thousands to still have my HECS debt growing is so disheartening.
I'm literally 20 and already owe more than 20,000, that's more than 1000 for every year of my life.
My Hecs & Student loan comes to 80k, indexation will mean all I have paid in the last 12 months comes to nothing.
I've just finished my degree (mum of 2 who staggered through it during lockdowns) and about to enter the full time working world. Feeling like I'm behind before I even begin.
I'm going to pay about $3500 in HECS this year and at the end of the year my HECS debt will increase by $4760. Absolute nightmare.
We must stop this pain of ever ballooning student debt. It does nothing but make life harder for so many, just for studying.
The bill I have introduced immediately stops any indexation of student debts going forward, effectively freezing debt levels and preventing the nasty jump in debts we're headed for next year.
The second part of our bill lifts the current minimum repayment threshold of $48,361 to the median wage.
This means that no one with a study debt will repay a cent of that debt until they're earning above the wage of around $62,400. As the median wage rises, so too will the minimum repayment thresholds established by this bill.
This reverses the Liberals' persistent cuts to repayment thresholds that have seen thousands upon thousands of graduates forced to start repaying student loans before they've found their feet and long before they're making a median wage and can afford to make repayments. If the neo-Liberals had not made these terrible changes to drop the minimum repayment income in 2016 and 2018, the minimum repayment income today would be $63,333.
If this bill passes, more than 3.2m people—that's every person with a study debt—will see the benefits of the indexation freeze in this Bill when 1 June comes around. 54% of these people are under forty and just getting started in their post-education lives. About 60% of those who benefit are women.
But that's only the start of the benefits.
Anyone earning less than median wage would see an immediate increase to take home pay from 1 July 2023.
Someone earning just under what the median wage is expected to be this financial year—would have more than $1,600 extra in their pockets in the 2023-24 tax year alone.
Many who earn above the median wage will also get a hip pocket benefit because the lifted thresholds mean a lower percentage of their income is being withheld for student debt repayments.
Anyone earning a median wage or below will never have to make any student debt repayments.
2.4 million people will benefit from the new repayment thresholds established by this bill, more than 80% of whom are under 40 and more than 60% of whom are women.
The abolition of student debt is not a new idea, nor should it be a controversial one.
If US President Joe Biden's mostly boring, mostly centrist government can wipe the student debt of more Americans than Australia has HELP debtors, then we certainly can do better.
The cancellation of study debts in the US is a credit to the work of activists and students in the US whose years of work on the issue gave a loud and clear message to the establishment that education should never be a debt sentence.
In Australia, the last decade has been a particularly tortured time for students and graduates.
In 2016 and again in 2018, fresh from a few failed attempts to jack up Uni fees, the Liberals introduced legislation which significantly lowered the minimum repayment income for student loans to hike the rate and pace of repayments. At the same time they messed with indexation, tying it to CPI instead of wages.
These changes were as harmful as they were nonsensical. Lowering the minimum repayment income disproportionately affected students and graduates on low-incomes and completely abandoned the principle that students should only begin repaying their debts when they earned roughly the average wage.
When 2020 rolled around, the Liberals came back for another go at university fees and funding with the disastrous Job Ready Graduates package which hiked fees on students and cut funding, massively shifting the cost of delivering a university education away from the Government and onto students.
The fee changes were not small tweaks either. They more than doubled the fees for degrees like arts and commerce to more than fourteen thousand dollars a year. On average, the package drove up fees for women by 10% compared to 6% for men.
With the fee hikes came enormous cuts to teaching and learning funding that have since forced universities to teach more students with less money across the board.
These cruel funding cuts and fee hikes are further fuelling the explosion in student debt that is hurting students today.
This bill is an opportunity for the Labor government and cross benchers to join the Greens in supporting the interests of students.
Once you might have assumed that Labor would have no problems voting for this bill's simple measures to give those with a study debt cost of living relief and make our education system fairer for all.
But I fear Labor is no longer the party of Whitlam when it comes to education. They talk a big game from the benches but seem to have fled the field now voters have given them a run.
On this occasion, I would be glad to be proven wrong and very pleased to see Labor support this bill.
When the former Liberal government slashed the minimum repayment income, Labor said the changes were unfair and voted against them.
When the Liberals introduced their university fee hikes and funding cuts in 2020, Labor made the correct eleventh hour decision to oppose them.
But since then they have been deathly quiet on university funding. They won't even commit to reversing the atrocity of those funding cuts and fee hikes that are seeing universities forced to do more with less while students pay through the nose and face decades of debt.
So I hope with this bill they take the opportunity to back students, women and other people struggling to pay off their study debts.
Ballooning student debts and government inaction can't be seen as anything other than punching students and graduates while they're down.
The hip pocket harm of having exorbitant student debt repayments withheld from paychecks isn't the only harm we're seeing done by student debt.
Only recently, we saw renewed testimony from people with study debts and lenders that outstanding HELP debts are preventing people from getting finance to be able to purchase a home or severely limiting the amount that they are able to borrow. It's tough enough as it is to find secure housing. Allowing the problem of student debt to go unaddressed will only make it worse in the months and years to come.
Even if there were no cost of living crisis, we have to be clear on the principle that underscores all our efforts for free public education and an end to student debt:
Now that we are no longer weighed down by the Liberal's attacks on the very idea of public education and training, it's time we began the work of rebuilding our education system. I won't ever miss the opportunity to remind the Government that a majority awaits them in the Senate for ambitious measures that look to the future and advance the cause of higher education and training as a universal public good, built on the principles of equity and democracy.
For the Greens part, we are proudly the party of public education. We know that education at every level should be free, fully funded and properly resourced, with staff who are paid properly, valued and respected for the incredible work they do.
This bill is one of the pieces of the puzzle in making that vision a reality.
I commend the bill to the Senate.
That there be laid on the table by the Minister representing the Minister for the Environment and Water, by no later than 8 pm on 30 November 2022, the Commonwealth Government's written response to the report on the Joint World Heritage Centre/IUCN, Reactive monitoring mission to the Great Barrier Reef (Australia) 2022 , which was issued on or about 12 September 2022.
Human Rights (Children Born Alive Protection) Bill 2022
That the following bill be introduced: A Bill for an Act to protect children born alive (including as a result of terminations), and for related purposes. H uman Rights (Children Born Alive Protection) Bill 2022 .
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
First, I would like to acknowledge the work of my former Queensland Nationals colleague and Member for Dawson, George Christensen, for all the work he did on a previous version of this Bill. I undertook to carry on that work because this issue is so important.
To protect its most vulnerable, in 1990, Australia ratified the UN Convention on the Rights of the Child.
Article 6 of the convention commits Australia to recognising that every child has the inherent right to life; and ensuring to the maximum extent possible the survival and development of the child.
Article 24 of the convention commits Australia to recognising the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. Our nation has signed up to striving to ensure that no child is deprived of his or her right of access to such health care services.
Further, Article 24 says Australia shall take appropriate measures to diminish infant and child mortality. In short, Australia has committed to every child having the right to life, every child having access to health care and reducing the deaths of babies.
Yet, in this nation, potentially hundreds of babies are born alive as a result of abortion procedures without any significant subsequent intervention. Our most vulnerable are simply left to die. In preparing this Bill, George asked the Parliamentary Library to do some research. Despite sketchy data, they found, that in a single year, 33 babies aborted after 20 weeks gestation were born alive in Victoria while, in Queensland, 204 babies were born alive as a result of abortions over a 10-year period. In fact, in Queensland, the problem is systemic with Queensland Health's Clinical Guidelines for Termination of Pregnancy stating: 'If [during an abortion] a live birth occurs… Do not provide life sustaining treatment… Document the time and date of death.'
How is this policy, how are these deaths, in accordance with our international obligation as a nation to every child having the right to life, every child having access to health care and reducing the deaths of babies? How are we treating our most vulnerable, and what does it say about our nation?
Let me be clear: I am pro-life.
I think abortion is an evil. It results in the death of a child and often ongoing mental harm for a parent. I would rather no child be aborted in this country or elsewhere. But whether you are pro-life or so-called pro-choice, I do not know that anyone, but the most cold-blooded sociopath, who could say that a child born alive is not a child and thus does not have any rights.
The Human Rights (Children Born Alive Protection) Bill 2022 seeks to place a duty of care on medical practitioners to provide exactly the same medical care and treatment to a child born alive as a result of an abortion as they would a child born in any other circumstances.
Under this bill, breaching that duty would incur a penalty and there is a new obligation for medical practitioners to report to the Federal Department of Health on children born alive as a result of abortions.
George commissioned a survey by the recognised polling company YouGov before he initially introduced this Bill to the House. The survey found that support for a Bill such as this one is extremely strong across all sectors of the community. More than three times as many people support care for these babies than oppose care. The majority of people expect any baby should be afforded medical care, regardless of the circumstances of their birth. It is a view shared by people aged 18 to 34 and those aged over 65. It's a view shared by both men and women, and those living in the inner city and the outer regions.
Some have tried to claim—quite falsely—that this bill would require doctors, under threat of penalty, to keep non-viable babies alive. This is not true.
Section 9 of the bill states that the medical care and treatment to be provided to a baby born alive as a result of an abortion to be commensurate to the circumstances, not including the fact that they were born as a result of a termination and goes on to state that this could be life-saving treatment or, indeed, palliative care as the case may be.
Some have said this bill would keep babies alive that have congenital deformities. Well, again, only if the baby was viable. And if the baby was viable but had congenital deformities, which is another way of saying the baby was born with disabilities, what is the problem? Are people saying that children born with disabilities should be left to die?
Others have claimed that this bill perpetuates a myth that children are born alive a result of abortions. The data available via the Parliamentary Library shows that to be a false claim, but even if that claim was correct—which it is not—what harm would this bill do? If no viable child is ever born alive as a result of an abortion, then this bill has no effect.
But if one child, just one, was born alive in such circumstances and that child was viable then this bill would not only have an effect, but it would be more important than probably most laws on the books because it would save a life that otherwise would have been discarded like it was medical waste.
The fact is there is little to argue against in this bill, unless of course an objector felt that a baby born alive as a result of an abortion should be left to die because it was born as a result of an abortion. Such a position would be in contravention of our international obligations under the UN Convention on the Rights of the Child. Specifically, Article 6 of that convention, which states that "Australia recognises: … that every child has the inherent right to life. And "Australia: … shall ensure to the maximum extent possible the survival and development of the child."
Further, Article 24 of that convention, states that "Australia recognises: … the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. And Australia: … shall strive to ensure that no child is deprived of his or her right of access to such health care services." And "Australia: … shall pursue full implementation of this right and (specifically) shall take appropriate measures … to diminish infant and child mortality."
Every death of a viable baby born alive as a result of an abortion that occurs in Australia means that the fundamental rights of a child enshrined in this UN convention are absent in this country.
This needs to be remedied. Lives need to be saved. This Bill, the Human Rights (Children Born Alive Protection) Bill 2022, seeks to protect the most vulnerable in our society.
In closing, I'd like to use this quote most often attributed to Mahatma Gandhi—"the true measure of any society can be found in how it treats its most vulnerable members."
The question of whether or not this Bill is supported will be a test of the true measure of not only this chamber, or this parliament, but of our society.
That the Senate—
(a) notes that:
(i) at the estimates hearing of the Environment and Communications Legislation Committee (Committee) on 8 November 2022, the Managing Director of the Australian Broadcasting Commission (ABC) was asked to provide information relating to the remuneration of highly paid ABC staff,
(ii) the Managing Director made a claim of public interest immunity in relation to the information, with reference to staff privacy, work health and safety, the statutory independence and role of the ABC and the commercial interests of the ABC, and
(iii) there has also been correspondence and Clerk's advice in relation to this matter, which has been published on the Committee's webpages, including information that the Committee has upheld the claim of public interest immunity, noting that not all members of the Committee supported the acceptance of the claim of public interest immunity;
(b) rejects the claim of public interest immunity made by the Managing Director, noting that:
(i) as a statutory authority, the ABC is accountable to the Senate for its expenditure of public funds,
(ii) the Privacy Act 1988 does not restrict the disclosure of the requested information to the Parliament,
(iii) the commercial interests of the ABC in not disclosing this information are outweighed by the acute public interest in disclosure,
(iv) work health and safety and the statutory independence and role of the ABC are not recognised as grounds on which to make a claim of public interest immunity,
(v) in 2017, the Committee determined it was in the public interest to publish details of executive remuneration at Australia Post,
(vi) it must be established that some specific harm may occur because of the disclosure of the information sought,
(vii) the ABC has not offered to disclose the information sought in more general terms,
(viii) reflecting the need for greater transparency, since 2016 the British Broadcasting Corporation (BBC) has been required by law to disclose the annual pay of staff earning more than £150,000, which exposed discriminatory wage practices and led to a landmark gender pay inequality case resulting in the BBC apologising and paying compensation for underpaying a former BBC employee, (See 'The ABC of gender pay parity: no transparency leaves women powerless', https://www.crikey.com.au/2022/11/22/abc-gender-pay-parity- transparency-women/ published 22 November 2022), and
(ix) the public interest in the Senate being able to effectively scrutinise the expenditure of the ABC through the provision of the requested information outweighs any other impact that release of the information may have; and
(c) orders that there be laid on the table by the Managing Director of the ABC, by no later than midday on Friday, 9 December 2022, the following information relating to the remuneration of highly-paid ABC staff for this financial year and the previous financial year:
(i) the name and title of each ABC employee, contractor, subcontractor or other worker who has or is being paid total remuneration (as defined in the Public Governance, Performance and Accountability Rule 2014 that is equal to or greater than $230,000 per annum (highly paid staff), and
(ii) the amount of total remuneration per annum paid to each highly paid staff including a breakdown of this remuneration into the following categories:
(A) base salary,
(B) performance pay and bonuses,
(C) other benefits and allowances (including overtime),
(D) employer superannuation contributions,
(E) long-service leave,
(F) other long-term benefits, and
(G) termination benefits.
The Senate divided. [15:47]
(The President—Senator Lines)
That the Senate—
(a) notes that:
(i) at the estimates of the Environment and Communications Legislation Committee (Committee) on 8 November 2022, the Managing Director of the Australian Broadcasting Commission (ABC) was asked to provide information relating to the roles, gender, place of work and remuneration bands for ABC employees,
(ii) the Managing Director of the ABC made a claim of public interest immunity in relation to the information, with reference to staff privacy and work health and safety, and the statutory independence and commercial interests of the ABC, and
(iii) there has also been correspondence and Clerk's advice in relation to this matter which has been published on the Committee's webpages including information that the Committee has upheld the claim of public interest immunity, noting that not all members of the Committee supported the acceptance of the claim of public interest immunity;
(b) rejects the claim of public interest immunity made by the Managing Director, noting that:
(i) the Privacy Act 1988 does not restrict the disclosure of the requested information to the Parliament,
(ii) as a statutory authority, the ABC is accountable to the Senate for its expenditure of public funds,
(iii) there is an acute public interest in transparency about the role, gender, place of work and remuneration band of ABC employees as well as how various departments, divisions, programs and offices are resourced, particularly with regards to gender pay equality and the adequacy of funding for ABC offices in regional Australia,
(iv) the ABC has not been requested to identify any person and the salary information requested is confined to a broad salary band in $40,000 increments, and
(v) the public interest in the Senate being able to effectively scrutinise the expenditure and operation of the ABC through the provision of the requested information outweighs any other impact that release of the information may have;
(c) orders that there be laid on the table by the Managing Director of the ABC by midday on Friday, 9 December 2022 tabulated information in relation to each current ABC employee:
(i) position title or job description, categorised into departments, divisions, programs, offices or other applicable working groups,
(ii) for the purposes of subparagraph (i):
(A) if a department includes multiple programs or divisions, each separate program or division must be specified, and
(B) if an ABC employee works across multiple programs, division, offices, or other applicable working groups-the name of the entity to which the employer is currently assigned should be provided; and
(iii) gender (where such information is available), place of employment, and total remuneration per annum (as defined in the Public Governance, Performance and Accountability Rule 2014), provided in terms of salary bands, starting at $00.00-$40,000, and increasing in increments of $40,000.
The Senate divided. [11:52]
(The President—Senator Lines)
(1) That there be laid on the table by the Minister representing the Attorney-General, by no later than 10 am on Thursday, 15 December 2022, all correspondence, emails, briefings, notes, meeting agendas and minutes, and other records of interactions between the Attorney-General or the Attorney-General's Department and New South Wales or Queensland authorities responsible for prisons since 1 January 2022 in relation to:
(a) the visit to Australia by the United Nations Subcommittee on Prevention of Torture in October 2022; or
(b) the implementation of the Optional Protocol to the Convention Against Torture.
(2) For the purposes of this order, 'New South Wales or Queensland authorities responsible for prisons' includes but is not limited to:
(a) ministers of the New South Wales or Queensland governments;
(b) the New South Wales Department of Communities and Justice;
(c) Corrective Services NSW;
(d) the Queensland Department of Justice and Attorney-General;
(e) Queensland Corrective Services; and
(f) individual prisons, mental health facilities or other places of detention within New South Wales or Queensland.
The Senate divided. [15:57]
(The President—Senator Lines)
That the days of meeting of the Senate for 2023 be as follows:
Autumn sittings:
Monday, 6 February to Thursday, 9 February
Monday, 6 March to Thursday, 9 March
Monday, 20 March to Friday, 24 March
Monday, 27 March to Thursday, 30 March
Budget sittings:
Tuesday, 9 May to Thursday, 11 May
Winter sittings:
Tuesday, 13 June to Friday, 16 June
Monday, 19 June to Thursday, 22 June
Spring sittings:
Monday, 31 July to Thursday, 3 August
Monday, 7 August to Thursday, 10 August
Monday, 4 September to Thursday, 7 September
Monday, 11 September to Thursday, 14 September
Monday, 16 October to Thursday, 19 October
Monday, 6 November to Friday, 10 November
Monday, 13 November to Friday, 17 November
Monday, 27 November to Thursday, 30 November
Monday, 4 December to Thursday, 7 December
(1) That estimates hearings by legislation committees for 2023 be scheduled as follows:
202 2 -2 3 Budget estimates:
Monday, 13 February and Tuesday, 14 February (supplementary hearings—Group A)
Wednesday, 15 February and Thursday, 16 February (supplementary hearings—Group B)
2023-24 Budget estimates:
Monday, 22 May to Thursday, 25 May, and, if required, Friday, 26 May (Group A)
Tuesday, 30 May to Friday, 2 June, and, if required, Friday, 23 June (Group B)
Monday, 23 October and Tuesday, 24 October (supplementary hearings— Group A)
Wednesday, 25 October and Thursday, 26 October (supplementary hearings— Group B ).
(2) That cross portfolio estimates hearings on Indigenous matters and on Murray- Darling Basin Plan matters be scheduled for Friday, 17 February, Friday, 26 May and Friday, 27 October, but not restricted to these days.
(3) That the committees consider the proposed expenditure in accordance with the allocation of departments and agencies to committees agreed to by the Senate.
(4) That committees meet in the following groups:
Group A:
Environment and Communications
Finance and Public Administration
Legal and Constitutional Affairs
Rural and Regional Affairs and Transport
Group B:
Community Affairs
Economics
Education and Employment
Foreign Affairs, Defence and Trade.
(5) That the committees report to the Senate on Tuesday, 27 June 2022 in respect of the 2023-24 Budget estimates.
(1) That a select committee, to be known as the Select Committee on Australia's Disaster Resilience, be established to inquire and report into the following matters:
(a) current preparedness, response and recovery workforce models, including:
(i) the role of the Australian Defence Force in responding to domestic natural disasters,
(ii) the impact of more frequent and more intense natural disasters, due to climate change, on the ongoing capacity and capability of the Australian Defence Force,
(iii) the direct costs and opportunity costs of Australian Defence Force high availability disaster recovery operations, and
(iv) the role of Australian civil and volunteer groups, not-for-profit organisations and state-based services in preparing for, responding to and recovering from natural disasters, and the impact of more frequent and more intense natural disasters on their ongoing capacity and capability;
(b) consideration of alternative models, including:
(i) repurposing or adapting existing Australian civil and volunteer groups, not-for-profit organisations and state-based services, and
(ii) overseas models and best practice;
(c) consideration of the practical, legislative, and administrative arrangements that would be required to support improving Australia's resilience and response to natural disasters; and
(d) any related matters.
(2) The committee present its final report on or before the last sitting day in September 2023.
(3) The committee consist of six senators, as follows:
(a) two senators nominated by the Leader of the Government in the Senate;
(b) two senators nominated by the Leader of the Opposition in the Senate;
(c) one senator nominated by minority party or independent senators; and
(d) one senator nominated by the Jacqui Lambie Network.
(4) That:
(a) participating members may be appointed to the committee on the nomination of the Leader of the Government in the Senate, the Leader of the Opposition in the Senate or any minority party or independent senator; and
(b) participating members may participate in hearings of evidence and deliberations of the committee, and have all the rights of members of the committee, but may not vote on any questions before the committee.
(5) In the event that the Senate is not sitting and is not expected to meet for at least a week, the Leader of the Government in the Senate, the Leader of the Opposition in the Senate, minority groups or independent Senators may nominate any appointment or discharge of a member of a committee in writing to the President. The change in membership shall take effect from the time the President received the written nomination. At the next sitting, the President shall report the change to the Senate and the Senate shall resolve that membership of the committee.
(6) If a member of a committee is unable to attend a meeting of the committee, that member may in writing to the chair of the committee appoint a participating member to act as a substitute member of the committee at that meeting, and if the member is incapacitated or unavailable, a letter to the chair of a committee appointing a participating member to act as a substitute member of the committee may be signed on behalf of the member by the leader or whip of the party or group on whose nomination the member was appointed to the committee.
(7) That the committee may proceed to the dispatch of business notwithstanding that not all members have been duly nominated and appointed and notwithstanding any vacancy.
(8) That the committee elect as chair the member nominated by the Jacqui Lambie Network, and as deputy chair the member nominated by the Leader of the Government in the Senate.
(9) That the deputy chair shall act as chair when the chair is absent from a meeting of the committee or the position of chair is temporarily vacant.
(10) That the chair, or the deputy chair when acting as chair, may appoint another member of the committee to act as chair during the temporary absence of both the chair and deputy chair at a meeting of the committee.
(11) That, in the event of an equally divided vote, the chair, or the deputy chair when acting as chair, have a casting vote.
(12) That the committee have power to appoint subcommittees consisting of three or more of its members, and to refer to any such subcommittee any of the matters which the committee is empowered to examine.
(13) That the committee and any subcommittee have power to send for and examine persons and documents, to move from place to place, to sit in public or in private, notwithstanding any prorogation of the Parliament or dissolution of the House of Representatives, and have leave to report from time to time its proceedings, the evidence taken and such interim recommendations as it may deem fit.
(14) That the committee be provided with all necessary staff, facilities and resources and be empowered to appoint persons with specialist knowledge for the purposes of the committee with the approval of the President.
(15) That the committee be empowered to print from day to day such documents and evidence as may be ordered by it, and a daily Hansard be published of such proceedings as take place in public.
That the order of 29 November 2022, relating to the routine of business for Thursday, 1 December 2022, be amended to allow formal motions to take place after a report from the Selection of Bills Committee has been considered.
That the following matter be referred to the Community Affairs References Committee for inquiry and report by the first sitting day in March 2023:
The use of puberty blockers in Australia, with particular reference to:
(a) the causes of the increase in rapid onset of gender dysphoria in children, including friendship groups, peer contagion, gender clinic staff and social media;
(b) the experiences of parents of young people who have been prescribed puberty blockers, including their experience with the medical system;
(c) the experiences of young people who have been prescribed puberty blockers, including their experience with the medical system;
(d) the medical oversight of general practitioners prescribing puberty blockers;
(e) the results of longitudinal studies of young people prescribed puberty blockers;
(f) whether the decision of the England and Wales High Court in Bell v Tavistock [2020] EWHC 3274, which held that it was highly unlikely that a child under the age of 16 could give consent to being prescribed puberty blockers, should apply in Australia;
(g) whether puberty blockers are reversible as claimed;
(h) whether affirming gender dysphoria as a primary condition is always helpful in the absence of investigating prior trauma, mental illness and other conditions; and
(i) any other related matters.
The Senate divided [16:18]
(The President—Senator Sue Lines)
That the Senate take note of the report.
That the Senate take note of the report.
That the Senate take note of the document.
Animal Health Australia and Plant Health Australia Funding Legislation Amendment Bill 2022
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
ABORIGINAL LAND GRANT (JERVIS BAY TERRITORY) AMENDMENT (STRENGTHENING LAND AND GOVERNANCE PROVISIONS) BILL 2022
The Australian Government has worked with the Wreck Bay Aboriginal Community Council and the broader Wreck Bay community over a number of years to co-design the Aboriginal Land Grant (Jervis Bay Territory) Amendment (Strengthening Land and Governance Provisions) Bill 2022, with the most recent consultations on the detail of the Bill in August this year. The Bill will:
The Wreck Bay community is located in the Jervis Bay Territory, on the southern New South Wales coast, 126 kilometres east of Canberra. The Jervis Bay Territory was formally established in 1915, on the land of the Bherwerre Peninsula, through the enactment of the Jervis Bay Territory Acceptance Act 1915 . Of course, First Nations people had been living in the area since long before that time, and never agreed to the surrender of these lands. Middens on the Bherwerre Peninsula provide evidence of thousands of generations of First Nations occupation of the area.
During the 1960s and 1970s, members of the community advocated for the recognition of their connection to their land in Australian law. This advocacy culminated in the enactment of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 . The Act established the Wreck Bay Aboriginal Community Council to hold title to Aboriginal Land in the Jervis Bay Territory, to manage that land for the benefit of the community, and to advocate for and serve the community more generally. There have been three declarations of Aboriginal Land since 1987. Today, more than 90 per cent of the land in the Jervis Bay Territory is Aboriginal Land owned and managed by the Council. Much of that land is Booderee National Park, which is leased back to the Director of National Parks and is jointly managed by the Council and the Director of National Parks.
This Bill ensures that the Council is well positioned to hold and manage this land for the benefit of the Council's members for generations to come.
The Bill enhances local control over decision making by increasing the amount the Council can agree to spend under a contract without obtaining Ministerial approval. This amount will increase from $100,000 to $1 million, empowering the Council to pursue commercial ventures without having to navigate unnecessary red tape.
The Bill assists the Council to issue home ownership style leases to individuals in the community. If community members wish to do so, they will be able to take out a home ownership style lease. This will simplify arrangements for long-term leasing and provide opportunity for community members to enjoy the intergenerational benefits of home ownership.
The Bill strengthens the Council's governance structures, aligning them more closely with those of comparable corporate Commonwealth entities. The powers of the Council will be vested in the Board; until now, the Council's members have had to delegate powers to the Board, creating uncertainty within the Council. The Board and the Chief Executive Officer will be explicitly empowered to delegate functions and powers so the Council can function effectively. The Bill also ensures only fit and proper persons may serve on the Board, and changes quorum requirements from set numbers to percentages of overall members, ensuring responsiveness to changes in overall membership numbers.
Importantly, the Bill updates the title of the Act to the "Aboriginal Land and Waters (Jervis Bay Territory) Act 1986". This name reflects the Council's ownership of an area of the waters of Jervis Bay, as well as freshwater sources across the Jervis Bay Territory. It recognises the community's strong connection to waters as well as land, and the importance of the Act in supporting that enduring connection into the future.
The Government's Closing the Gap commitment to shared decision-making has guided the development of these reforms. Targeted co-design sessions were held in 2020 and 2021, including with the Council's Board, men's and women's groups, subcommittees, elders, youth, and the broader membership. Some reforms were proposed by the community, others were suggested by Government, and every reform in this Bill has been explicitly endorsed by the Board.
I acknowledge the work that occurred under the former Minister for Indigenous Australians, the Honourable Ken Wyatt, in progressing this important work with the Wreck Bay community.
The Government sincerely thanks the Council for its work in the co-design of this Bill. In particular, we acknowledge the leadership of Annette Brown and Julie Moore, who have chaired the Council during the co-design process.
The Council's work honours the longstanding tradition of community service and representation in Wreck Bay. Those who advocated for land rights in the late twentieth century paved the way for the present generation to maintain their deep connection to their land and waters. This Bill ensures that the Wreck Bay community will continue to live their culture through this enduring connection for generations to come.
I commend this Bill to the chamber.
ANIMAL HEALTH AUSTRALIA AND PLANT HEALTH AUSTRALIA FUNDING LEGISLATION AMENDMENT BILL 2022
Maintaining Australia's strong biosecurity status ensures our food security and protects agricultural trade.
This can only be achieved through a strong government-industry partnership.
One of the many ways this partnership takes effect is through the work of Animal Health Australia and Plant Health Australia.
Through these bodies, the Australian Government partners with state and territory governments and a number of livestock and plant industry bodies to further our shared biosecurity interests and ensure Australia's world class produce remains in high demand.
Incursions of exotic animal diseases or plant pests into Australia are relatively rare, but they do have serious potential impacts.
Detections of foot and mouth disease and lumpy skin disease in one of our nearest neighbouring nations has had the government and livestock industries on high alert.
The government has taken immediate action to prevent these diseases from entering Australia, implementing the strongest biosecurity response in our nation's history.
This includes our three-pronged approach of supporting Indonesia's response to both diseases with animal vaccinations and technical support, stronger measures at the border and increased preparedness here at home.
Because, the risk of incursion cannot be entirely mitigated.
This is why governments and industry bodies partner as signatories to the Emergency Animal Disease Response Agreement and Emergency Plant Pest Response Deed.
If the worst should happen and an exotic animal disease or plant pest should make its way into Australia, emergency eradication responses are mounted and cost-shared under these deeds to give the best possible chance of eradication.
Government and industry investment can avoid significant pest or disease management cost to our producers in the long run.
Over the past few years, under these emergency response arrangements, we have been able to eradicate citrus canker and three strains of avian influenza.
Varroa jacobsoni—a bee parasite—was also eradicated and we are now working to achieve the same outcome for its more problematic cousin, varroa destructor.
Four kinds of biosecurity levies provide an equitable way for all producers to contribute to the cost of the biosecurity activities and eradication responses that benefit their industry.
Animal Health Australia and Plant Health Australia levies fund activities such as biosecurity education, planning and surveillance, as well as AHA and PHA membership.
Emergency Animal Disease Response and Emergency Plant Pest Response levies primarily fund industry contributions to eradication responses.
They can also be spent on other biosecurity activities once these financial obligations are met.
An issue for Plant Health Australia member industries is that for the EPPR levy this alternative use is limited to purposes related to emergency plant pests under the plant response deed.
Increasing the flexibility in how these levies can be spent to include all plant health and biosecurity activities will increase their effectiveness.
The Bill will achieve this by broadening the range of permissible uses for these levies.
Plant industries have welcomed this change, as it will allow them to focus available funds on their industry's most pressing biosecurity needs, whether for exotic or established plant pests.
However, meeting response costs remains crucial—it is the main purpose for emergency response levies—and the Bill will not change that.
This Bill will also modernise and streamline the AHA and PHA funding legislation, including by removing redundant or duplicative provisions.
For example, a complex provision for funding biosecurity-related research and development activities through PHA levies will be removed in favour of using PHA's more straightforward industry planning processes.
The Bill will also simplify the process by which the relevant PHA industry member for a specific biosecurity levy is determined.
This will reduce regulatory and administrative burden.
Honey bees provide valuable pollination services to a myriad of plant industries and the honey industry's biosecurity activities are now characterised as plant biosecurity.
Therefore, references to honey in the AHA Act can now be removed.
The Bill will also allow the AHA Act to facilitate the levy arrangements that are likely to be needed if other response deeds are agreed.
Each of these changes will make the AHA and PHA funding legislation more effective, efficient and fit for purpose.
This will strengthen the ability of industries to invest meaningfully in biosecurity and help maintain Australia's enviable position as a world-class agricultural producer and exporter.
Higher Education Support Amendment (2021 Measures No. 1) Bill 2021
That this bill may proceed without formalities and be now read a first time.
That this bill be now read a second time.
This Bill amends the Higher Education Support Act 2003 to support students through fairer grandfathering provisions and support our rural, remote and very remote communities by encouraging our medical graduates to provide services in those areas.
When the former Government's Job-ready Graduates scheme was introduced in late 2020 it grandfathered students who were already studying at 1 January 2021 so they could finish their course at the same student contribution rates as when they started.
In a lapsed bill the former Government introduced a correction to those grandfathering provisions to include honours course students who had started but not finished their original course at 1 January 2021. That correction is included in this bill.
In the first weeks of this Government, the Sydney Morning Herald published a story that revealed that a number of other students were also left out of grandfathering because their courses were changed or cancelled by their Universities.
It's not fair that students face higher student contribution rates because of decisions taken by their University and which are out of their control.
This bill fixes that.
The Government will be reviewing the Job-ready Graduates program as part of the Universities Accord which will commence soon, but it's important that these measures are introduced now so that these students are treated fairly.
This Bill also introduces measures from a lapsed bill to encourage doctors and nurse practitioners to live and work in rural, remote and very remote areas of Australia.
It puts in place a scheme for eligible doctors and nurse practitioners to have their HELP debts reduced or wiped if they live and work in those areas for a period based on the length of their degree.
Doctors and nurse practitioners who live and work in a remote or very remote community for the equivalent of half the length of their degree will be able to have 100 per cent of their HELP debt wiped.
Doctors and nurse practitioners who live and work in a large, medium or small rural town will have 100% of their HELP debt wiped if they live and work there for the equivalent of the length of their degree.
This means an eligible doctor with a HELP debt from a six year medical degree and who lives and provides services in a remote community like Broome or Bourke for three years will be able to have their HELP debt for that course wiped.
An eligible nurse practitioner who lives and works in a rural town like Parkes for two years will be able to have the HELP debt for their nurse practitioner course wiped.
Doctors and nurse practitioners who meet half of the time requirements will be able to access half of the HELP debt removal.
And doctors and nurse practitioners working in these areas will be able to apply for a waiver of indexation on their HELP debt whilst they live and work there.
The classification of rural and remote locations is based on the Modified Monash Model and the bill makes provision for Guidelines to define eligibility and service requirements.
It is expected to help around 850 medical practitioners a year.
This measure will be effective from 1 January this year, and the Education and Health portfolios will work together to implement this scheme.
The measures in this Bill further support the Government's commitment to fairness in our education sector and to support services in our rural and remote communities.
I commend to them to the chamber.
Ozone Protection and Synthetic Greenhouse Gas Management Reform (Closing the Hole in the Ozone Layer) Bill 2022
Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Amendment Bill 2022
Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Amendment Bill 2022
That these bills may proceed without formalities, may be taken together and be now read a first time.
That these bills be now read a second time.
Biosecurity Amendment (Strengthening Biosecurity) Bill 2022
National Anti-Corruption Commission Bill 2022
Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022
For the purposes of subparagraph (1)(b)(ii), examples of common interests—
that employers may have include the following:
(a) a geographical location;
(b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;
(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.
Subsection 243(2) would provide examples of common interests that employers may have. This includes the geographical location of the employers, the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment …
10 medium-sized fish and chip shops with seafood processing plants in Queensland have decided or been compelled to bargain together in the single interest stream.
In their current arrangements they must enforce 4 awards to run their business, the Seafood Processing Award, the Retail Award, the Fast Food Award and the Restaurant Award. This has led to increased compliance costs for business.
Provisions … undermine the system of enterprise bargaining and the comprehensive system of modern awards that have served manufacturing and employees well for decades;
Provisions … risk unfairly subjecting broad sectors to centralised settings of terms and conditions, reducing individual enterprise-level autonomy and competitiveness; and
The criteria for access to the 'single interest' bargaining and supported bargaining frameworks may be used to achieve industry sector agreements in a wider range of sectors than purportedly intended.
The Senate divided. [18:34]
(The Acting Deputy President—Senator Chandler)
At the end of the motion, add ", but the Senate calls on the Government to:
(a) remove all provisions of the bill which give their trade union donors the power to veto agreements; and
(b) tighten the 'common interest test' under the 'single interest employer stream' to follow the current considerations the Minister is required to follow under the Fair Work Act 2009 as it stands".
The Senate divided. [18:39]
(The Acting Deputy President—Senator Chandler)
The Senate divided. [18:46]
(The Acting Deputy President—Senator Chandler)
Well, Senator Lambie, I don't think people just dump amendments on people and then expect them to vote for them. We will not be supporting the amendment. I'm reading this amendment for the first time myself.
(1) Clause 2, page 5 (at the end of the table), add:
(2) Schedule 1, item 371, page 86 (line 21), omit "relating to", substitute "that the President considers might relate to".
(3) Schedule 1, item 371, page 86 (line 28), omit "relating to", substitute "that the President considers might relate to".
(4) Schedule 1, item 371, page 87 (line 5), omit "relating to", substitute "that the President considers might relate to".
(5) Schedule 1, item 371, page 87 (line 11), omit "relating to", substitute "that the President considers might relate to".
(6) Schedule 1, item 371, page 87 (line 17), omit "relating to", substitute "that the President considers might relate to".
(7) Schedule 1, item 371, page 87 (after line 22), after subsection 617(10), insert:
President's considerations
(10A) For the purposes of subsections (6), (7), (8), (9) and (10), if the President considers that an equal remuneration order, determination or modern award might relate to the Care and Community Sector, it does not matter if the President considers that the equal remuneration order, determination or modern award might also relate to another sector.
(8) Schedule 1, item 372, page 88 (before line 1), before section 617A, insert:
617AA Full Bench and Expert Panel with identical membership
(1) This section applies if a Full Bench and an Expert Panel consist of the same FWC Members.
(2) In performing its functions or exercising its powers, the Full Bench is not limited by:
(a) the functions or powers of the Expert Panel; or
(b) the purposes for which the Expert Panel was constituted.
(3) In performing its functions or exercising its powers, the Expert Panel is not limited by the functions or powers of the Full Bench.
(4) Without limiting subsection (2) or (3), a reference in this section to performing a function or exercising a power includes a reference to the following:
(a) making a determination or modern award under subsection 157(1);
(b) making a determination under subsection 157(2);
(c) making an equal remuneration order under section 302;
(d) performing a function or exercising a power under section 159, 160 or 161 (about variations of modern awards).
(5) This section is enacted for the avoidance of doubt.
(9) Schedule 1, item 437, page 118 (line 24), omit "After Part 6-4C", substitute "Before Part 6-5".
(10) Schedule 1, item 437, page 119 (line 1), omit "Part 6-4D", substitute "Part 6-4E".
(11) Schedule 1, item 441, page 123 (lines 32 to 33), omit subparagraph 333E(5)(d)(ii), substitute:
(ii) the current contract contains an option for renewal or extension;
(iia) the previous contract contained an option for extension that has been exercised;
(12) Schedule 1, item 463, page 135 (lines 18 to 25), omit subsection 65B(4), substitute:
(4) If a dispute is referred under subsection (3):
(a) the FWC must first deal with the dispute by means other than arbitration, unless there are exceptional circumstances; and
(b) the FWC may deal with the dispute by arbitration in accordance with section 65C.
Note: For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate. The FWC commonly deals with disputes by conciliation. The FWC may also deal with the dispute by mediation, making a recommendation or expressing an opinion (see subsection 595(2)).
(13) Schedule 1, item 463, page 136 (lines 14 to 20), omit paragraphs 65C(1)(c) to (e), substitute:
(e) if the FWC is satisfied that the employer has not responded, or has not responded adequately, to the employee's request under section 65A—an order that the employer take such further steps as the FWC considers appropriate, having regard to the matters in section 65A;
(14) Schedule 1, item 463, page 136 (after line 26), at the end of subsection 65C(1), add:
Note: An order by the FWC under paragraph (e) could, for example, require the employer to give a response, or further response, to the employee's request, and could set out matters that must be included in the response or further response.
(15) Schedule 1, Part 11, page 138 (after line 9), at the end of the Part, add:
Division 5 — Pre gnancy
Fair Work Act 2009
469A Before paragraph 65(1A)(a)
Insert:
(aa) the employee is pregnant;
(16) Schedule 1, page 160 (after line 6), after item 488, insert:
488A Section 12
Insert:
voting request order : see subsections 240A(1) and (2).
(17) Schedule 1, item 506B, page 162 (lines 12 to 16), omit subsection 180A(2), substitute:
(2) An employer must not request under subsection 181(1) that employees approve the enterprise agreement by voting for it unless:
(a) each bargaining representative for the enterprise agreement that is an employee organisation has provided the employer with written agreement to the making of the request; or
(b) a voting request order permits the employer to make the request.
Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).
(18) Schedule 1, item 511A, page 166 (lines 10 to 13), omit subsection 207A(2), substitute:
(2) An employer must not request under subsection 208(1) that employees approve the variation by voting for it unless:
(a) each employee organisation covered by the enterprise agreement has provided the employer with written agreement to the making of the request; or
(b) a voting request order permits the employer to make the request.
Note: Voting request orders can be made where failure to provide written agreement to the making of a request is unreasonable in the circumstances (see section 240B).
(19) Schedule 1, page 167 (after line 15), after item 519, insert:
519A At the end of Division 8 of Part 2-4
Add:
Subdivision E — Voting request orders
240A Application to FWC for voting request order
Proposed multi-enterprise agreement
(1) After the notification time for a proposed multi-enterprise agreement, a bargaining representative for the enterprise agreement may apply to the FWC for an order (a voting request order ) permitting an employer to make a request under subsection 181(1) that employees approve the enterprise agreement by voting for it if:
(a) each bargaining representative for the enterprise agreement that is an employee organisation has been asked to provide the employer with written agreement to the making of the request; and
(b) one or more of the employee organisations has failed to provide the written agreement.
Variation of multi-enterprise agreement
(2) A person referred to in subsection (3) may apply to the FWC for an order (also a voting request order ) permitting an employer to make a request under subsection 208(1) that employees approve a variation of a multi-enterprise agreement by voting for it if:
(a) each employee organisation covered by the enterprise agreement has been asked to provide the employer with written agreement to the making of the request; and
(b) one or more of the employee organisations has failed to provide the written agreement.
(3) The persons are the following:
(a) an employer covered by the enterprise agreement;
(b) an employee organisation covered by the enterprise agreement;
(c) an affected employee for the variation.
240B FWC must make voting request order
The FWC must, on application under subsection 240A(1) or (2), make a voting request order permitting an employer to make a request if the FWC is satisfied that:
(a) for each employee organisation that has failed to provide written agreement to the making of the request, the failure was unreasonable in the circumstances; and
(b) if the request relates to approval of a proposed enterprise agreement—the making of the request by the employer would not be inconsistent with or undermine good faith bargaining for the enterprise agreement.
(20) Schedule 1, page 169 (before line 3), before item 525, insert:
524A Section 12 (definition of prospectiv e award covered employee )
Repeal the definition.
524B Section 12
Insert:
reasonably foreseeable employee for an enterprise agreement: see subsection 193(5).
(21) Schedule 1, item 526, page 170 (lines 6 and 7), omit the item, substitute:
526 Subsection 193(1)
Omit "prospective award covered", substitute "reasonably foreseeable".
526A At the end of subsection 193(1)
Add:
Note 1: Reasonably foreseeable employee is defined in subsection (5).
Note 2: Section 193A sets out rules for applying the better off overall test, including requiring the FWC to only have regard to patterns or kinds of work, or types of employment, that are reasonably foreseeable at the test time (see subsection 193A(6)).
526B Subsection 193(3)
Omit "prospective award covered", substitute "reasonably foreseeable".
526C Subsection 193(5) (heading)
Repeal the heading, substitute:
Reasonably foreseeable employee
526D Subsection 193(5)
Omit " prospective award covered ", substitute "reasonably foreseeable ".
(22) Schedule 1, item 528, page 170 (lines 17 and 18), omit "who is covered by the agreement at the test time", substitute "concerned".
(23) Schedule 1, item 528, page 170 (lines 26 to 28), omit subsection 193A(2A).
(24) Schedule 1, item 528, page 171 (line 20), at the end of subsection 193A(6), add "In considering what is reasonably foreseeable, the FWC must have regard to the nature of the enterprise or enterprises to which the agreement relates.".
(25) Schedule 1, item 528, page 171 (after line 20), after subsection 193A(6), insert:
(6A) The FWC must determine whether a particular pattern or kind of work, or type of employment, is reasonably foreseeable for the purposes of subsection (6) if a view is expressed by any of the following that it is, or is not, reasonably foreseeable:
(a) the employer or employers that are covered by the agreement;
(b) if the agreement is not a greenfields agreement—the award covered employees for the agreement;
(c) in any case—a bargaining representative for the agreement.
(26) Schedule 1, item 531, page 172 (line 24), at the end of subsection 211(4A), add:
; and (c) the words "if the agreement is not a greenfields agreement—" in paragraph (6A)(b) were omitted; and
(d) the words "in any case—a bargaining representative for the agreement" in paragraph (6A)(c) were omitted and the words "the employee organisation or employee organisations that are covered by the agreement" were substituted.
(27) Schedule 1, item 534, page 174 (line 5), omit "or (3)".
(28) Schedule 1, item 534, page 174 (line 26) to page 175 (line 4), omit subsection 227A(3).
(29) Schedule 1, item 534, page 176 (line 3), at the end of subsection 227B(2), add:
; and (g) the words "if the agreement is not a greenfields agreement—" in paragraph 193A(6A)(b) were omitted; and
(h) the words "in any case—a bargaining representative for the agreement" in paragraph 193A(6A)(c) were omitted and the words "the employee organisation or employee organisations that are covered by the agreement" were substituted.
(30) Schedule 1, item 534, page 176 (line 21), omit paragraph 227B(4)(b), substitute:
(b) if another day is specified in the amendment (which may be a day before the amendment is made)—that other day.
(31) Schedule 1, item 534, page 176 (after line 21), at the end of section 227B, add:
(5) The FWC must specify a day before the amendment is made for the purposes of paragraph (4)(b) if the FWC considers that it is necessary for the amendment to operate from the earlier day to address the concern to which the amendment relates.
(32) Schedule 1, item 534, page 177 (after line 13), at the end of Division 7A, add:
227E No creation of liability to pay pecuniary penalty for past conduct
Application of this section
(1) This section applies if an amendment of an enterprise agreement made under paragraph 227B(3)(b) has a retrospective effect because it comes into operation on a day before the day on which the amendment is made.
No creation of liability to pay pecuniary penalty for past conduct
(2) If:
(a) a person engaged in conduct before the amendment was made; and
(b) but for the retrospective effect of the amendment, the conduct would not have contravened a term of the enterprise agreement;
a court must not order a person to pay a pecuniary penalty under Division 2 of Part 4-1 in relation to the conduct, on the grounds that the conduct contravened a term of an enterprise agreement.
Note: This section does not affect the powers of a court to make other kinds of orders under Division 2 of Part 4-1.
(33) Schedule 1, Part 16, page 177 (after line 13), at the end of the Part, add:
534A Subsection 546(1) (note)
Omit "Note", substitute "Note 1".
534B At the end of subsection 546(1)
Add:
Note 2: Pecuniary penalty orders cannot be made in relation to conduct that contravenes a term of an enterprise agreement only because of the retrospective effect of an amendment made under paragraph 227B(3)(b) (see subsection 227E(2)).
(34) Schedule 1, page 187 (after line 18), after item 552, insert:
552A After paragraph 275(c)
Insert:
(ca) the significance, to those employers and employees, of any arrangements or benefits in an enterprise agreement that, immediately before the determination is made, applies to any of the employers in respect of any of the employees;
(35) Schedule 1, item 584, page 195 (lines 1 to 8), to be opposed.
(36) Schedule 1, item 597, page 202 (line 8), omit "paragraph 243(1)(c)", substitute "paragraphs 243(1)(c) and (2A)(a)".
(37) Schedule 1, item 597, page 202 (line 14), at the end of section 216AC, add:
; (d) as if all of the words in paragraph 243(2A)(b) were replaced with the words "the affected employees are, at the time the application for approval of the variation is being considered, employees in an industry, occupation or sector declared by the Minister under subsection (2B)".
(38) Schedule 1, item 611, page 208 (line 3), omit the heading to subsection 243(1), substitute:
Supported bargaining authorisation — main case
(39) Schedule 1, item 611, page 208 (after line 23), at the end of subsection 243(1), add:
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
(40) Schedule 1, item 611, page 208 (after line 32), after subsection 243(2), insert:
Supported bargaining authorisation — declared industry etc.
(2A) The FWC must also make a supported bargaining authorisation in relation to a proposed multi-enterprise agreement if:
(a) an application for the authorisation has been made; and
(b) the employees specified in the application are employees in an industry, occupation or sector declared by the Minister under subsection (2B).
Note: This subsection is subject to section 243A (restrictions on making supported bargaining authorisations).
(2B) The Minister may, by legislative instrument, declare an industry, occupation or sector, if the Minister is satisfied that doing so is consistent with the objects of this Division set out in section 241.
(41) Schedule 1, item 611, page 209 (before line 8), before subsection 243A(1), insert:
Relationship between this section and section 243
(1A) Section 243 has effect subject to this section.
(42) Schedule 1, item 614, page 210 (lines 3 to 11), omit subsection 244(4), substitute:
(4) If an application is made under subsection (3), the FWC must vary the authorisation to add the employer's name if the FWC is satisfied that it is in the public interest to do so, taking into account:
(a) if the employer's employees are in an industry, occupation or sector declared by the Minister under subsection 243(2B)—the declaration; and
(b) if paragraph (a) of this subsection does not apply—the matters set out in paragraph 243(1)(b); and
(c) any other matters the FWC considers appropriate.
(4A) Despite subsection (4), the FWC must not vary the authorisation if subsection 243A(1) (employees covered by single-enterprise agreement that has not passed nominal expiry date) would prevent the FWC from making a supported bargaining authorisation specifying the employees.
(43) Schedule 1, item 629, page 216 (line 25), omit "met.", substitute "met; and".
(44) Schedule 1, item 629, page 216 (after line 25), at the end of paragraph 216DC(1)(b), add:
(v) if the requirements of subsection (3) are met—the operations and business activities of the employer are reasonably comparable with those of the other employers who are covered by the agreement.
(1AA) If:
(a) the application for approval of the variation was made by an employee organisation under section 216DB; and
(b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed for the purposes of subparagraph (1)(b)(v) that the operations and business activities of the employer are reasonably comparable with those of the other employers that are covered by the agreement, unless the contrary is proved.
(45) Schedule 1, item 629, page 216 (lines 28 and 29), omit paragraph 216DC(1A)(a), substitute:
(a) the employer that will be covered by the agreement employed at least 20 employees at the time that the application for approval of the variation was made; and
(46) Schedule 1, item 629, page 218 (after line 4), after subsection 216DC(3A), insert:
(3AB) If:
(a) the application for approval of the variation was made by an employee organisation under section 216DB; and
(b) the employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1A)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
(47) Schedule 1, item 629, page 218 (line 18), omit "6 months", substitute "9 months".
(48) Schedule 1, item 633A, page 222 (line 10), omit "met.", substitute "met; and".
(49) Schedule 1, item 633A, page 222 (after line 10), at the end of paragraph 249(1)(b), add:
(vi) if the requirements of subsection (3) are met—the operations and business activities of each of those employers are reasonably comparable with those of the other employers that will be covered by the agreement.
(1AA) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the operations and business activities of the employer are reasonably comparable with those of the other employers that will be covered by the agreement, unless the contrary is proved.
(50) Schedule 1, item 633A, page 222 (line 20), omit paragraph 249(1B)(a), substitute:
(a) the employer employed at least 20 employees at the time that the application for the authorisation was made; and
(51) Schedule 1, item 634A, page 223 (after line 33), after subsection 249(3A), insert:
(3AB) If:
(a) the application for the authorisation was made by a bargaining representative under paragraph 248(1)(b); and
(b) an employer that will be covered by the agreement employed 50 employees or more at the time that the application was made;
it is presumed that the requirements of subsection (3) are met in relation to that employer, unless the contrary is proved.
Calculating number of employees
(3AC) For the purposes of calculating the number of employees referred to in paragraph (1AA)(b), (1B)(a) or (3AB)(b):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the employer at the time that the application for the authorisation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer; and
(d) associated entities of the employer are taken to be one entity.
(52) Schedule 1, item 636A, page 224 (line 30), omit "6 months", substitute "9 months".
(53) Schedule 1, item 637, page 225 (lines 14 to 23), omit subsection 251(2), substitute:
(2) The FWC must vary the authorisation to remove the employer's name if:
(a) an application has been made under subsection (1); and
(b) the requirements of either subsection (2A) or (2B) are met.
(2A) The requirements of this subsection are met if the FWC is satisfied that:
(a) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express to the FWC their views (if any) on the application; and
(b) because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation.
(2B) The requirements of this subsection are met if:
(a) the application was made by a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates; and
(b) the FWC is satisfied that:
(i) the employer (the relevant employer ) whose name is proposed to be removed employed fewer than 50 employees at the time that the application was made; and
(ii) the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had the opportunity to express to the FWC their views (if any) on the application; and
(iii) the employees (the relevant employees ) who are employed by the relevant employer and that would be covered by the proposed enterprise agreement to which the authorisation relates have, on request by the bargaining representative, approved the removal of the relevant employer's name by voting for the removal; and
(iv) there are no reasonable grounds for believing that the removal of the relevant employer's name has not been genuinely approved by the relevant employees.
Note: A person must not coerce another person to exercise a workplace right in a particular way (see section 343).
(2C) Without limiting subparagraph (2B)(b)(iii), the bargaining representative may request that the relevant employees vote by ballot or by an electronic method.
(2D) For the purposes of subparagraph (2B)(b)(iii), the relevant employees are taken to have approved the removal of the employer's name if:
(a) at least 50% of the relevant employees cast a vote; and
(b) more than 50% of the valid votes were votes approving the removal.
(54) Schedule 1, item 638, page 226 (line 21), omit "added.", substitute "added; and".
(55) Schedule 1, item 638, page 226 (after line 21), at the end of paragraph 251(4)(b), add:
(v) if the requirements of subsection 249(3) would continue to be met if the new employer's name were added—the operations and business activities of the new employer are reasonably comparable with those of the employers specified in the authorisation.
(4A) If:
(a) the application for approval of the variation was made by a bargaining representative under paragraph (3)(b) of this section; and
(b) the new employer employed 50 employees or more at the time that the application was made; and
(c) the requirements of subsection 249(2) do not apply to the new employer;
then the following matters are presumed, unless the contrary is proved:
(d) that the requirements of subsection 249(3) would continue to be met if the new employer's name were added;
(e) that, for the purposes of subparagraph (4)(b)(v) of this section, the operations and business activities of the new employer are reasonably comparable with those of the other employers that are specified in the authorisation.
(56) Schedule 1, item 638, page 226 (line 25), omit paragraph 251(5)(a), substitute:
(a) the new employer employed at least 20 employees at the time that the application for the variation was made; and
(57) Schedule 1, item 638, page 227 (after line 1), after subsection 251(5), insert:
(5A) For the purposes of calculating the number of employees referred to in subparagraph (2B)(b)(i) or paragraph (4A)(b) or (5)(a):
(a) employee has its ordinary meaning; and
(b) subject to paragraph (c), all employees employed by the new employer at the time that the application for the variation was made are to be counted; and
(c) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the new employer; and
(d) associated entities of the new employer are taken to be one entity.
(58) Schedule 1, item 638, page 227 (line 31), omit "6 months", substitute "9 months".
(59) Schedule 1, item 651B, page 238 (lines 11 to 14), omit paragraph 23B(1)(a), substitute:
(a) the work is done, onsite, by an employee in the industry of:
(i) general building and construction within the meaning of paragraph 4.3(a) of the Building and Construction General On-site Award 2020 as in force at the applicable time; or
(ii) civil construction within the meaning of paragraph 4.3(b) of the Building and Construction General On-site Award 2020 as in force at the applicable time; and
(60) Schedule 1, item 651B, page 238 (lines 16 to 19), omit subparagraph 23B(1)(b)(i).
(61) Schedule 1, item 651B, page 239 (line 27), at the end of paragraph 23B(1)(b), add:
; (xiii) work in the asphalt industry within the meaning of clause 4.2 of the Asphalt Industry Award 2020 as in force at the applicable time;
(xiv) work, in that part of the industry of civil construction described in subparagraph 4.3(b)(i) of the Building and Construction General On-site Award 2020 as in force at the applicable time, that is the construction, repair, maintenance or demolition of power houses or other structures that use eligible renewable energy sources (within the meaning of section 17 of the Renewable Energy (Electricity) Act 2000 ) to generate electricity.
(62) Schedule 1, item 660, page 256 (line 7), omit "and 4", substitute ", 4 and 5".
(63) Schedule 1, item 667, page 266 (lines 12 to 15), to be opposed.
(64) Schedule 1, item 667A, page 266 (lines 16 to 26), omit the item, substitute:
667A Paragraph 7(9)(a)
Omit "firefighting duties made up a substantial portion", substitute "the relevant authority is satisfied that firefighting or related duties made up a not insubstantial portion".
(65) Schedule 1, item 667B, page 267 (line 1), omit "an employee who is covered by subparagraph (a)(i)", substitute "for an employee of the Australian Capital Territory specified in a declaration under subsection 5(15)—the employee".
(66) Schedule 1, page 267 (after line 7), after item 668, insert:
668A After subsection 7(9)
Insert:
(9A) If a declaration under subsection (9B) is in force, then when determining for the purposes of paragraph 7(9)(a) whether firefighting or related duties made up a not insubstantial portion of the duties of an employee of the Australian Capital Territory, being an employee:
(a) covered by paragraph 5(11)(e) or (ea) as a result of being a volunteer member (however described) of a body referred to in either of those paragraphs; or
(b) specified in a declaration under subsection 5(15);
the relevant authority must:
(c) by writing, request the declared ACT firefighting advisory committee to give the relevant authority written advice in relation to the matter within a reasonable period specified in the request; and
(d) have regard to any such advice provided within that period.
(9B) If the Chief Minister for the Australian Capital Territory so requests in writing, the Minister may, by legislative instrument, declare that a committee or other body (however described) that is established:
(a) by or under an ACT enactment; or
(b) by a written instrument made by a Minister (including the Chief Minister) of the Australian Capital Territory;
is the declared ACT firefighting advisory committee for the purposes of subsection (9A).
(9C) A reference in subsection (9) or (9A) to the duties of an employee includes, in relation to an employee of the Australian Capital Territory specified in a declaration under subsection 5(15), a reference to the activities to which that subsection applies that were engaged in by the employee.
(67) Schedule 1, item 669, page 267 (lines 8 to 16), omit the item, substitute:
669 Application of amendments
Item 12 of the table in subsection 7(8) of the Safety, Rehabilitation and Compensation Act 1988 , as amended by this Part, applies in relation to a decision made under that Act (including a decision on reconsideration or review under Part VI of that Act), after the commencement of this item, in relation to primary site oesophageal cancer sustained by an employee on or after 4 July 2011.
(68) Schedule 1, page 267 (after line 16), at the end of the Schedule, add:
Part 28 — Paid family and domestic violence leave
Division 1 — Main amendments
Fair Work Act 2009
670 After paragraph 536(2)(c)
Insert:
; and (d) comply with any requirements prescribed by the regulations in relation to the reporting of paid family and domestic violence leave.
671 After subsection 536(3)
Insert:
(3A) A pay slip is not false or misleading merely because it complies with regulations made for the purposes of paragraph (2)(d).
Division 2 — Other amendments
Fair Work Act 2009
672 Subsection 539(2) (after table item 34)
Insert:
673 After paragraph 557(2)(p)
Insert:
(paa) section 757BA (which deals with employer obligations in relation to pay slips relating to paid leave to which the person is entitled because of section 757B);
674 Subsection 757B(4)
Repeal the subsection, substitute:
Extended paid family and domestic violence leave provisions
(4) The extended paid family and domestic violence leave provisions are the provisions of Subdivision CA of Division 7 of Part 2-2, and the related provisions identified in subsection (3) of this section, as they apply because of this section.
675 Section 757BA
Repeal the section, substitute:
757BA Employer obligations in relation to pay slips
If an employer gives a person a pay slip relating to paid leave to which the person is entitled because of section 757B, the employer:
(a) must not include on the pay slip any information prescribed by regulations made for the purposes of paragraph 536(2)(c); and
(b) must comply with any requirements prescribed by regulations made for the purposes of paragraph 536(2)(d).
Note: This section is a civil remedy provision (see Part 4-1).
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
… … …
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(f) the speech made to a House of the Parliament by a Minister on the occasion of the moving by that Minister of a motion that the Bill containing the provision be read a second time in that House;
(g) any document (whether or not a document to which a preceding paragraph applies) that is declared by the Act to be a relevant document for the purposes of this section; and
(h) any relevant material in the Journals of the Senate, in the Votes and Proceedings of the House of Representatives or in any official record o f debates in the Parliament or either House of the Parliament.
(a) the employers are bargaining in good faith for a proposed enterprise agreement that will cover the employers and the relevant employees, or substantially the same group of the relevant employees; and
(b) the employers and the relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the employers and the relevant employees, or substantially the same group of the relevant employees; and
(c) on the day that the FWC will make the authorisation, less than 6 months—
have passed since the most recent nominal expiry date of an agreement—
For the purposes of new paragraph 250(3)(b),—
an employer is likely to have a history of effectively bargaining in relation to one or more enterprise agreements if one or more of those resulting enterprise agreements provided for terms and conditions that were more than a marginal improvement on those contained in the relevant award (i.e. they must do more than simply pass the BOOT). The requirement would operate so that only enterprise agreements that provide genuine benefits to both the employer/s and their relevant employees would be relevant to the FWC's decision to exercise its discretion not to make a single interest employer authorisation that would specify the employer and its relevant employees. This discretion would not need to be relied upon where the parties have agreed (in writing) to bargain for a single-enterprise agreement as these parties would be excluded under clause 249(1D)(b).
Overall, new subsection 250(3) would provide the FWC discretion to refuse an application for a single interest employer authorisation, even if the requirements in new subsection 249(1) are met, if the FWC is satisfied that the authorisation should not be made having regard to current bargaining. The subsection would uphold and respect the ability of an employer to bargain with relevant employees in appropriate circumstances.
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises … and the terms and conditions of employment in those enterprises.
(b) the employers have clearly identifiable common interests;
For the purposes of paragraph (3)(b), matters that may be relevant to determining whether the employers have a common interest include the following:
(a) geographical location;
(b) regulatory regime;
(c) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises.
Employers of very different size, scope and scale might, depending on all the circumstances, be found to have clearly identifiable common interests for the purpose of bargaining together. This amendment would ensure that the FWC must also be satisfied that the operations and business activities of an employer are reasonably comparable with the other employers. It may be open to the Fair Work Commission to conclude that despite two employers of a similar size, scope and scale operating in the same industry, they are not 'reasonably comparable' once the full extent of their business activities and operations are considered.
Last Thursday the minister told the House in question time that a small business—
located in a shopping centre with a large supermarket would not be compelled to bargain together with that supermarket. Given the bill specifically mentions geographical location as establishing the common interest that means a business can be dragged into multi-employer bargaining …
So, even if you got over the hurdle—and I don't know logically how you could get over the hurdle—on common interest, to claim that they're somehow reasonably comparable would just a beggar belief.