Division Description Changes — Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; Second Reading — 30th Nov 2022

Change	Division
senate vote 2022-11-30#5 Edited by mackay staff on 2022-12-08 15:13:58	Title Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; Second Reading Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 - Second Reading - Withdraw Description ~~<p class="speaker">Paul Scarr</p>~~ ~~<p>Acting Deputy President Sterle, I note how keen you were to take the chair for my speech in continuation tonight! You wore one of your favourite ties for the occasion!</p>~~ The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2022-11-29.264.8) to the usual [second reading motion](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/) "that the bill be read a second time" - parliamentary jargon for agreeing with the main idea. This means it failed. ### Motion text > Omit all words after "That", substitute "the bill be withdrawn and the Senate calls on the Albanese Government to: > > (a) give the Australian Parliament three months to review these significant changes rather than trying to force through the legislation this year; > *> (b) amend the legislation to exclude changes** to multi-employer bargaining which will lead to more strikes and fewer jobs without increasing productivity or wages;* > *> (c) admit to the Australian people that these extreme industrial relations** changes will result in significant red tape and higher costs for small, family and medium businesses;* > *> (d) work with the Opposition, crossbench and other stakeholders to make improvements to the better off overall test and changes to enterprise bargaining as outlined in the former Coali*tion Government's legislation, introduced in 2020; > > (e) abandon the move to abolish the Australian Building and Construction Commission and the Registered Organisations Commission; > > (f) redraft this legislation to ensure matters are dealt with separately rather than as an 'all or nothing' approach; and > *> (g) in the event the Bill is passed, cause an independent review to be conducted of the operation of the amendments made by** the Act as soon as practical 12 months after the Bill receives Royal Assent and cause a copy of the report to be tabled in each House of Parliament".* <p>I would like to talk about some of the specific provisions in this bill and my concern about the drafting of the bill. Bear in mind that this legislation is going to impact small and medium-sized businesses across this country, many of whom do not have a dedicated human resources function or an in-house legal function to give them advice. We've heard during the debate over the last few weeks that the government's estimate of consultant or adviser fees of $175 an hour, as provided in the regulation impact statement, is simply underdone, undercooked—not accurate.</p> <p>The reality is that small and medium-sized businesses who want to get legal advice or industrial relations advocacy advice in relation to these measures which they are going to have to comply with are looking at a cost—just for a junior adviser or consultant—in the region of $350 an hour, at least twice as much as the government has estimated in its regulatory impact statement. That is deeply concerning. If you are going to change the law and put a cost imposition on small and medium-sized businesses, work out what the cost is appropriately. As has been said by my friend Senator Brockman in the course of this debate—I did exactly the same as Senator Brockman. I rang a small business that provides industrial advocacy services in my home state, in Brisbane, and I was told that, for a junior, it was $350 an hour and, for someone more senior, between $400 and $500 an hour. Yet we have a regulatory impact statement which refers to an estimate of $175 an hour. That is very disappointing.</p> <p>I want to turn to some of the drafting of the bill. A key clause is in relation to what constitutes a common interest, because it's under this definition that small and medium-sized enterprises may be dragged into an industrial relations dispute. This is what the definition says:</p> ~~<p class="italic">For the purposes of subparagraph (1)(b)(ii), examples of common interests—</p>~~ ~~<p>that's the key definition, common interests—</p>~~ ~~<p class="italic">that employers may have include the following:</p>~~ ~~<p class="italic">(a) a geographical location;</p>~~ ~~<p class="italic">(b) the nature of the enterprises to which the agreement will relate, and the terms and conditions of employment in those enterprises;</p>~~ ~~<p class="italic">(c) being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory.</p>~~ <p>It's up to the Fair Work Commission to decide, on the basis of those criteria in the bill, whether or not there is a common interest. We then turn to the explanatory memorandum. For those listening to the debate, the explanatory memorandum is meant to explain what the provisions in the bill actually mean. This is what it tells us:</p> <p class="italic">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 …</p> ~~<p>So the explanatory memorandum simply restates what's actually in the bill. It doesn't explain anything. It just restates what's in the bill.</p>~~ <p>So what is one to make of the phrase 'a geographical location'? Every business in this country is at a geographical location. Putting aside the fact that a location needs to be geographical—I'm not sure what else it can be—what does that mean? Are we talking about businesses which are adjacent to each other or in close proximity within a shopping centre, for example? Are we talking about a suburb? Are we talking about a region? For example, is Mount Isa considered a geographical location for the purposes of this test, or would it be north-west Queensland, regional Queensland or the state of Queensland? What is the actual geographical location we're talking about that triggers this test? There is absolutely no guidance whatsoever to the Fair Work Commission as to what this means in practice.</p> <p>Then we turn to the second link, the nature of the enterprises. Again, as is the case with a geographical location, the explanatory memorandum just regurgitates what's in the bill. It doesn't actually give a definition as to what 'nature of the enterprises' means—absolutely no guidance whatsoever. So, paragraph (a), a geographical location: well, I can tell you, every single business in this country is located at a geographical location. So where does that lead us?</p> <p>Then the second part, the 'nature of the enterprises'—again, no explanation as to what that means. Then you go to the regulatory impact statement—the famous regulatory impact statement that undercooks the cost of consultants that small and medium-size businesses are going to have to engage by at least 50 per cent—to see what this means. I go to the case study, which is contained on page 53 of the regulatory impact statement. This is how they think this should work in practice:</p> ~~<p class="italic">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.</p>~~ <p>I'm going to repeat that: '10 medium-sized fish and chip shops with seafood processing plants'—I'm assuming that they're not saying that each of the 10 medium-sized fish and chip shops has its own seafood processing plant. I'm assuming they're not intending to imply that. I'm assuming they're intending to imply that each of these 10 fish and chip shops sources its seafood from an external supplier. So, our 10 medium-sized fish and chip shops with seafood processing plants in Queensland 'have decided or been compelled'—at least the regulatory impact statement is honest in that regard—'to bargain together in the single interest stream'.</p> <p>For the life of me, Mr Acting Deputy President Sterle—and you are extremely well experienced in industrial relations matters—I cannot see any similarity whatsoever with respect to industrial relations issues between a medium-sized fish and chip shop that is a retail shop, that is outward facing—it presumably would be more busy during hours when people are going to get their fish and chips—and a seafood processing plant, which is processing seafood that has been caught. Where is the similarity? How in goodness's name would our 10 proprietors of the medium-sized fish and chip shop sit down with the general managers or owners of the seafood processing plant and with the unions and come up with any coherent enterprise agreement? How?</p> <p>This is madness. And this is the case study in the regulatory impact statement—10 medium-sized fish and chip shops getting together with the seafood processing factory. It's hard to fathom. Then we go through the case study and they say it's fantastic:</p> <p class="italic">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.</p> <p>But once they go through the single-interest stream of bargaining they're going to have one enterprise agreement. Seriously? How do you sit down and negotiate a meaningful enterprise agreement to cover a retail-facing fish and chip shop and a seafood processing plant? And this is the example we're given in the regulatory impact statement. It's absolutely embarrassing.</p> <p>So, we look at that example, and then we go back to the bill and look at the general comment around the nature of the enterprise. One is left with the unavoidable conclusion that this clause is just so vague and so general that it could be found to apply to anyone and anything, as long as they're in some sort of geographical proximity. I don't want to criticise the people who drafted the regulatory impact statement. I'm sure they've done their best under very difficult circumstances. This is the sort of example they're giving us: a seafood processing plant—a factory, to put it another way—entering into an enterprise agreement which would cover retail workers in a fish and chip shop. Seriously? I've never heard such a thing. I'd love to know if there is any example of that being done anywhere.</p> <p>There's a good reason why there are different awards that apply to restaurants, retail, fast food and seafood processing plants. The reason why you have different awards is the context, the facts and circumstances with respect to the place of work, occupational health and safety standards, presumably rosters and all sorts of issues are so materially different between those businesses. It is impossible to fathom how those sorts of medium and small businesses would come together and negotiate a meaningful enterprise agreement, but this is the case study that the government holds up. It is clear to me that insufficient work and time have been put into the preparation of this legislation, and I fear the consequences for our economy.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Paul Scarr~~
~~Acting Deputy President Sterle, I note how keen you were to take the chair for my speech in continuation tonight! You wore one of your favourite ties for the occasion!~~
The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2022-11-29.264.8) to the usual [second reading motion](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/) "that the bill be read a second time" - parliamentary jargon for agreeing with the main idea. This means it failed.
### Motion text
> *Omit all words after "That", substitute "the bill be withdrawn and the Senate calls on the Albanese Government to:*
>
> *(a) give the Australian Parliament three months to review these significant changes rather than trying to force through the legislation this year;*
>
> *(b) amend the legislation to exclude changes to multi-employer bargaining which will lead to more strikes and fewer jobs without increasing productivity or wages;*
>
> *(c) admit to the Australian people that these extreme industrial relations changes will result in significant red tape and higher costs for small, family and medium businesses;*
>
> *(d) work with the Opposition, crossbench and other stakeholders to make improvements to the better off overall test and changes to enterprise bargaining as outlined in the former Coalition Government's legislation, introduced in 2020;*
>
> *(e) abandon the move to abolish the Australian Building and Construction Commission and the Registered Organisations Commission;*
>
> *(f) redraft this legislation to ensure matters are dealt with separately rather than as an 'all or nothing' approach; and*
>
> *(g) in the event the Bill is passed, cause an independent review to be conducted of the operation of the amendments made by the Act as soon as practical 12 months after the Bill receives Royal Assent and cause a copy of the report to be tabled in each House of Parliament".*
I would like to talk about some of the specific provisions in this bill and my concern about the drafting of the bill. Bear in mind that this legislation is going to impact small and medium-sized businesses across this country, many of whom do not have a dedicated human resources function or an in-house legal function to give them advice. We've heard during the debate over the last few weeks that the government's estimate of consultant or adviser fees of $175 an hour, as provided in the regulation impact statement, is simply underdone, undercooked—not accurate.
The reality is that small and medium-sized businesses who want to get legal advice or industrial relations advocacy advice in relation to these measures which they are going to have to comply with are looking at a cost—just for a junior adviser or consultant—in the region of $350 an hour, at least twice as much as the government has estimated in its regulatory impact statement. That is deeply concerning. If you are going to change the law and put a cost imposition on small and medium-sized businesses, work out what the cost is appropriately. As has been said by my friend Senator Brockman in the course of this debate—I did exactly the same as Senator Brockman. I rang a small business that provides industrial advocacy services in my home state, in Brisbane, and I was told that, for a junior, it was $350 an hour and, for someone more senior, between $400 and $500 an hour. Yet we have a regulatory impact statement which refers to an estimate of $175 an hour. That is very disappointing.
I want to turn to some of the drafting of the bill. A key clause is in relation to what constitutes a common interest, because it's under this definition that small and medium-sized enterprises may be dragged into an industrial relations dispute. This is what the definition says:
~~For the purposes of subparagraph (1)(b)(ii), examples of common interests—~~
~~that's the key definition, 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.~~
It's up to the Fair Work Commission to decide, on the basis of those criteria in the bill, whether or not there is a common interest. We then turn to the explanatory memorandum. For those listening to the debate, the explanatory memorandum is meant to explain what the provisions in the bill actually mean. This is what it tells us:
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 …
~~So the explanatory memorandum simply restates what's actually in the bill. It doesn't explain anything. It just restates what's in the bill.~~
So what is one to make of the phrase 'a geographical location'? Every business in this country is at a geographical location. Putting aside the fact that a location needs to be geographical—I'm not sure what else it can be—what does that mean? Are we talking about businesses which are adjacent to each other or in close proximity within a shopping centre, for example? Are we talking about a suburb? Are we talking about a region? For example, is Mount Isa considered a geographical location for the purposes of this test, or would it be north-west Queensland, regional Queensland or the state of Queensland? What is the actual geographical location we're talking about that triggers this test? There is absolutely no guidance whatsoever to the Fair Work Commission as to what this means in practice.
Then we turn to the second link, the nature of the enterprises. Again, as is the case with a geographical location, the explanatory memorandum just regurgitates what's in the bill. It doesn't actually give a definition as to what 'nature of the enterprises' means—absolutely no guidance whatsoever. So, paragraph (a), a geographical location: well, I can tell you, every single business in this country is located at a geographical location. So where does that lead us?
Then the second part, the 'nature of the enterprises'—again, no explanation as to what that means. Then you go to the regulatory impact statement—the famous regulatory impact statement that undercooks the cost of consultants that small and medium-size businesses are going to have to engage by at least 50 per cent—to see what this means. I go to the case study, which is contained on page 53 of the regulatory impact statement. This is how they think this should work in practice:
~~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.~~
I'm going to repeat that: '10 medium-sized fish and chip shops with seafood processing plants'—I'm assuming that they're not saying that each of the 10 medium-sized fish and chip shops has its own seafood processing plant. I'm assuming they're not intending to imply that. I'm assuming they're intending to imply that each of these 10 fish and chip shops sources its seafood from an external supplier. So, our 10 medium-sized fish and chip shops with seafood processing plants in Queensland 'have decided or been compelled'—at least the regulatory impact statement is honest in that regard—'to bargain together in the single interest stream'.
For the life of me, Mr Acting Deputy President Sterle—and you are extremely well experienced in industrial relations matters—I cannot see any similarity whatsoever with respect to industrial relations issues between a medium-sized fish and chip shop that is a retail shop, that is outward facing—it presumably would be more busy during hours when people are going to get their fish and chips—and a seafood processing plant, which is processing seafood that has been caught. Where is the similarity? How in goodness's name would our 10 proprietors of the medium-sized fish and chip shop sit down with the general managers or owners of the seafood processing plant and with the unions and come up with any coherent enterprise agreement? How?
This is madness. And this is the case study in the regulatory impact statement—10 medium-sized fish and chip shops getting together with the seafood processing factory. It's hard to fathom. Then we go through the case study and they say it's fantastic:
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.
But once they go through the single-interest stream of bargaining they're going to have one enterprise agreement. Seriously? How do you sit down and negotiate a meaningful enterprise agreement to cover a retail-facing fish and chip shop and a seafood processing plant? And this is the example we're given in the regulatory impact statement. It's absolutely embarrassing.
So, we look at that example, and then we go back to the bill and look at the general comment around the nature of the enterprise. One is left with the unavoidable conclusion that this clause is just so vague and so general that it could be found to apply to anyone and anything, as long as they're in some sort of geographical proximity. I don't want to criticise the people who drafted the regulatory impact statement. I'm sure they've done their best under very difficult circumstances. This is the sort of example they're giving us: a seafood processing plant—a factory, to put it another way—entering into an enterprise agreement which would cover retail workers in a fish and chip shop. Seriously? I've never heard such a thing. I'd love to know if there is any example of that being done anywhere.
There's a good reason why there are different awards that apply to restaurants, retail, fast food and seafood processing plants. The reason why you have different awards is the context, the facts and circumstances with respect to the place of work, occupational health and safety standards, presumably rosters and all sorts of issues are so materially different between those businesses. It is impossible to fathom how those sorts of medium and small businesses would come together and negotiate a meaningful enterprise agreement, but this is the case study that the government holds up. It is clear to me that insufficient work and time have been put into the preparation of this legislation, and I fear the consequences for our economy.
~~Long debate text truncated.~~