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representatives vote 2022-11-10#8
Edited by
mackay staff
on
2022-11-16 18:57:00
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Title
Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; Consideration in Detail- Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 - Consideration in Detail - Warringah MP amendments
Description
<p class="speaker">Zali Steggall</p><p>by leave—I move amendments (1) to (7), as circulated in my name:</p>-
- The majority voted in favour of *disagreeing* with [amendments](https://www.openaustralia.org.au/debate/?id=2022-11-10.38.1) introduced by Warringah MP [Zali Steggall](https://theyvoteforyou.org.au/people/representatives/warringah/zali_steggall) (Independent), which means they failed.
- ### What do the amendments do?
- Ms Steggall [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-10.38.28):
- > *Amendments (1) to (3) deal with potential impacts on the productivity of businesses being roped into multi-employer bargaining after it has been completed. They haven't even been part of the negotiations, and the bill currently allows an employee representative—the union—to join an employer to a multiparty EBA after the conclusion of the agreement. The Fair Work Commission should consider the potential impact on the productivity of a business as a result of being compelled to sign onto the EBA. This is a straightforward amendment that should not be objected to by the government.*
- >
- > *The public interest test is amendment (6). Again, the amendment deals with the potential effects on productivity and competition. The bill as currently drafted requires the Fair Work Commission to be satisfied that it is not contrary to the public interest to do so before making a single-interest authorisation. The problem is that the drafting does not specify what would be contrary to the public interest. There is, therefore, no guarantee that the Fair Work Commission would take into account the benefits to productivity, competition and consumer protection that come from enterprise-level collective bargaining. The proposed amendment would require the Fair Work Commission to take into account the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining and the need to enhance the welfare of Australians through the promotion of competition and fair trading and the provision of consumer protections.*
- >
- > *Amendment (5) deals with common interest. In the single-interest stream, the common interest test in the current bill is very loosely defined and could have the effect of lessening competition by obliging smaller competitors to agree to multi-employer agreements with much larger businesses, with the potential for the smaller competitors to simply be priced out of the market. My proposed amendments would oblige the Fair Work Commission to take into account the economic circumstances and the relative sizes and scope of the employers' enterprises, as well as the extent to which the employers operate collaboratively rather than competitively, when determining whether the employers have a common interest.*
- >
- > *Of course, we've heard much today of the small business definition. The bill currently exempts businesses with fewer than 15 employees from being forced into single-interest employer bargaining. That figure is ridiculous. Many businesses with up to 50 employees would be unable to compete with large businesses who could afford to absorb the extra cost. They will go to the wall. What the amendment proposes is that it be at 50 full-time equivalent. At the very least, the government is saying it will consider it, and there is dispute on this number.*
<p class="italic">(1) Schedule 1, item 597, page 194 (line 29), at the end of subsection 216BA(3), add:</p><p class="italic">; or (c) the employer's productivity will be adversely affected by the agreement.</p><p class="italic">(2) Schedule 1, item 629, page 204 (lines 29 and 30), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".</p><p class="italic">(3) Schedule 1, item 629, page 205 (line 2), at the end of paragraph 216DC(1)(e), add:</p><p class="italic">; and (iv) the employer's productivity will not be adversely affected by the agreement.</p><p class="italic">(4) Schedule 1, item 634, page 208 (line 27), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".</p><p class="italic">(5) Schedule 1, item 634, page 209 (line 16), at the end of subsection 249(3C), add:</p><p class="italic">; (d) the economic circumstances of the employers' enterprises;</p><p class="italic">(e) the relative size and scope of the employers' enterprises;</p><p class="italic">(f) the extent to which the employers operate collaboratively rather than competitively.</p><p class="italic">(6) Schedule 1, item 634, page 209 (after line 22), after subsection 249(3D), insert:</p><p class="italic"> <i>Public </i> <i>interest test</i></p><p class="italic">(3E) For the purposes of paragraph (3)(f), the FWC may have regard to:</p><p class="italic">(a) the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining; and</p><p class="italic">(b) the need to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection.</p><p class="italic">(7) Schedule 1, item 639, page 211 (line 32), omit "is not a small business employer", substitute "employs more than 50 full-time equivalent employees".</p><p>These amendments focus on tightening up the legislation to ensure that the impacts on business productivity and competitiveness of businesses—</p> <p class="speaker">Hon. Members</p><p>Honourable members interjecting—</p> <p class="speaker">Milton Dick</p><p>Order! The House will come to order. There is far too much noise. Members should leave the chamber quickly and quietly so the member for Warringah can be heard in silence.</p> <p class="speaker">Zali Steggall</p><p>It's very interesting to see the members of government walking out during the consideration in detail stage of very important legislation.</p><p>Ho nourable members interjecting—</p> <p class="speaker">Milton Dick</p><p>Order!</p> <p class="speaker">Zali Steggall</p><p>When they were in opposition, they complained about the coalition doing it. But it goes to show that, as soon as it changes, the same behaviour applies.</p> <p class="speaker">Milton Dick</p><p>The member for Warringah will return to the amendments.</p> <p class="speaker">Zali Steggall</p><p>The unintended consequences of this legislation could have incredibly negative impacts on small businesses in my electorate, and they are still recovering from the impacts of COVID-19. It is misleading to the Australian public to claim that this will get wages moving, when there are going to be months of delay and negotiation—complex processes—and the winners will be the unions and the lawyers; it will not be the workers. It is disingenuous of the government to claim that this legislation will assist feminised industries, when many small businesses are run by women. They will be the first to suffer when this legislation brings an absolute stalemate to sectors like child care.</p><p>In Warringah, there are at least 370 businesses that would be able to engage in or be compelled to engage in multi-employer bargaining under the current definition of a 'small business', having less than 15 employees. The added complexity of being compelled to engage in the multi-employer bargaining process will put fear into many business owners. They are struggling to keep their heads above water, still reeling from the impacts of COVID-19 and increasing inflation.</p><p>Productivity impacts are dealt with in amendments (1) to (3). They deal with the potential impacts on the productivity—</p> <p class="speaker">Milton Dick</p><p>The member for Aston will cease interjecting.</p> <p class="speaker">Zali Steggall</p><p>Amendments (1) to (3) deal with potential impacts on the productivity of businesses being roped into multi-employer bargaining after it has been completed. They haven't even been part of the negotiations, and the bill currently allows an employee representative—the union—to join an employer to a multiparty EBA after the conclusion of the agreement. The Fair Work Commission should consider the potential impact on the productivity of a business as a result of being compelled to sign onto the EBA. This is a straightforward amendment that should not be objected to by the government.</p><p>The public interest test is amendment (6). Again, the amendment deals with the potential effects on productivity and competition. The bill as currently drafted requires the Fair Work Commission to be satisfied that it is not contrary to the public interest to do so before making a single-interest authorisation. The problem is that the drafting does not specify what would be contrary to the public interest. There is, therefore, no guarantee that the Fair Work Commission would take into account the benefits to productivity, competition and consumer protection that come from enterprise-level collective bargaining. The proposed amendment would require the Fair Work Commission to take into account the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining and the need to enhance the welfare of Australians through the promotion of competition and fair trading and the provision of consumer protections.</p><p>Amendment (5) deals with common interest. In the single-interest stream, the common interest test in the current bill is very loosely defined and could have the effect of lessening competition by obliging smaller competitors to agree to multi-employer agreements with much larger businesses, with the potential for the smaller competitors to simply be priced out of the market. My proposed amendments would oblige the Fair Work Commission to take into account the economic circumstances and the relative sizes and scope of the employers' enterprises, as well as the extent to which the employers operate collaboratively rather than competitively, when determining whether the employers have a common interest.</p><p>Of course, we've heard much today of the small business definition. The bill currently exempts businesses with fewer than 15 employees from being forced into single-interest employer bargaining. That figure is ridiculous. Many businesses with up to 50 employees would be unable to compete with large businesses who could afford to absorb the extra cost. They will go to the wall. What the amendment proposes is that it be at 50 full-time equivalent. At the very least, the government is saying it will consider it, and there is dispute on this number.</p><p>Everyone in this place goes to their communities saying they support small business, yet here we are with legislation that will make it incredibly difficult for small business owners. I think this is really problematic. It does not have social licence. <i>(Time expired)</i></p> <p class="speaker">Tony Burke</p><p>I thank the member for Warringah for the issues that have been raised. Some of them go to issues that were raised in other amendments, so I won't go into that in a lot of detail now, but I've given the reasons in terms of the definition of a 'small business'. The government is not seeking to have amendments on that during this debate today.</p><p>There are three issues that were raised by the member for Warringah and I want to go through them and explain why the government will oppose the amendment. First of all, the issue about someone being joined to an existing agreement simply by virtue of a decision of a union is not how it operates. It could only happen with there then being a vote of the workforce. Once again, going to that situation I was describing before, things have to be initiated either by a majority of the workforce or by the employer. Either can make the decision on opting in to the processes here.</p><p>In terms of productivity, I have no in-principle objection to what the member has said, but I would say that productivity already has to be considered. Productivity is specifically in the objects of the act. Productivity is also then brought in again when we deal with the objects of the bargaining section of the act. Therefore, in applying the public interest test and in making any decisions here, the Fair Work Commission is expected to be taking account of productivity. There's a reason why we have tried to keep some of these tests general and to fall back on the objects of the different parts of the act, rather than have a new list of extra conditions. The reason is that, 10 years ago or a bit more than that, this House in good faith established a low-paid bargaining stream with a whole lot of extra conditions that came out of this sort of debate. The result, when it came to practical application, was that we ended up with a stream which everybody had accepted should exist and everyone accepted should be a pathway for multi-employer bargaining for people on low wages, but which, effectively, no-one was able to access, to the point where people stopped applying.</p><p>So the view on the productivity proposal that's there is not that it shouldn't be taken into account but that the government's view is that it is already taken into account and we don't want to make the same mistakes that were made with the low-paid stream and end up putting so many conditions in place that we end up with a stream that of itself becomes overly complex and unusable. If, out of this, we end up establishing something that the very people we have been talking about are unable to access, then the problem that we're seeking to address won't have been addressed.</p> <p class="speaker">Paul Fletcher</p><p>I indicate that the opposition will be supporting the amendments moved by the member for Warringah. They go to many of the issues in this bill that we have indicated that we're very concerned about, including the definition of 'small business' or the cut-off point at which these intrusive and disruptive provisions can be visited upon a small business. Many of them have no idea this is coming. In terms of mandatory multi-employer bargaining and the other issues that we have raised that we've got very grave concerns about, we sought to address those in our amendments. A number of those issues are also sought to be addressed in the amendments moved by the member for Warringah, and the opposition will be supporting those amendments.</p> <p class="speaker">Allegra Spender</p><p>I'd like to speak briefly on the topic of businesses having to opt in to a bargain that has already been agreed to. The minister has rightly outlined that, if workers want to bargain, they should be able to bargain, and I wholeheartedly agree with that. But a business should also be able to bargain. If they're going to be pushed into an agreement and they have not had a chance to bargain, that could be extremely detrimental to their business and extremely detrimental to the workers involved as well, in the long term.</p> <p class="speaker">Zoe Daniel</p><p>I rise in support for the member's of Warringah's amendment and to note that, in this House, we now have several proposals for the definition of 'small business'—everything from 200 to 100 to 50. There is a reflected concern, I think, across this House around how this legislation will affect small businesses. I know that I've had these discussions with the minister. I rise simply to have it recorded that, whatever number the government ends up landing on, the concern is broad. I think the concern is multipartisan and that there are concerns among businesses across electorates and across Australia that, potentially, they will be unintentionally drawn in under this legislation.</p><p>In Goldstein, an electorate that has something like 17,000 small businesses, from small manufacturers to small cafes and such, those with a 15 headcount who would have casuals, 15-year-olds, working in their cafes, in the hospitality businesses, could potentially be drawn in to mandatory multi-employer bargaining under this legislation. I understand that there's an argument for small businesses of a particular size to be able to bargain collectively. I think the line in the legislation as it stands at a 15 headcount is wrong, and I rise again to just really press home the point to the government that when this legislation go to the Senate this is something that really deserves due consideration. Thank you.</p> <p class="speaker">Helen Haines</p><p>I'd like to associate myself with a similar sentiment to what's been expressed just now by the member for Goldstein. There are many elements of the amendments put forward by the member for Warringah and indeed by the member for Wentworth that I agree with. I have some disagreements on other elements, but the issue around the size of small business is I think a universal concern amongst virtually everyone I have spoken to—or have had the opportunity to speak to, in the very short period of time we've had to consider the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. We need to address the size that is indicated in the legislation around 'small business'. That absolutely needs to be negotiated in order to give me any comfort whatsoever that I can ever support this bill. Thank you.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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