Second Reading speech: Fair Work Amendment Bill 2013
- Minister for Employment and Workplace Relations, Financial Services and Superannuation
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This Labor Government fundamentally believes that the prosperity of Australia relies largely upon the creation of productive value in Australian workplaces.
This Labor Government is committed to ensuring that all Australians have an opportunity to find a job. This Labor Government encourages productive, collaborative, innovative, profitable, safe and cooperative workplaces.
The Fair Work Act considers the context of productivity in its objectives. Many unsupported opinions have been made to suggest the Fair Work Act has had a negative impact on productivity.
It is important that the record be set straight in the Parliament about why the allegations against the Act do not stand up to scrutiny.
The independent and expert Fair Work Act Review Panel found the Fair Work Act is operating as intended and in accordance with the objects of the legislation—which includes productivity and economic growth.
The panel confirmed that the Act does not negatively impact productivity growth. This conclusion is confirmed by the independent data provided by the ABS. Over the last five quarters, annual productivity growth has been above its historical average.
Labour productivity in the market sector grew by 2.9 per cent in 2011-12, a significant improvement over labour productivity growth in the previous year and above the historical average of 2.2 per cent per annum since 1994-95.
While productivity estimates can be volatile, productivity growth in the last year has been fairly rapid in the context of a longer-term slowdown since the 1990s.
In fact, productivity growth under the Fair Work Act is superior than that under previous workplace relations regimes. Indeed, productivity growth under our Fair Work Act is around triple the rate than that experienced under the former Coalition Government’s disastrous Work Choices.
This demonstrates that those who seek to argue that there is a ‘productivity problem’ with the Fair Work legislation—and argue this as justification for adopting a more draconian workplace relations regime—well they are simply wrong.
This Government installed a legislative framework to improve productivity through a focus on protecting terms and conditions, through dialogue and negotiation at the workplace level.
While it would be wrong to suggest the Fair Work Act alone is solely or largely responsible for this productivity performance, it is clearly a fallacy to suggest that the Act has been a drag on Australia’s productivity performance.
Indeed the evidence on Australia’s economic performance is compelling: there are more Australians in work in than ever before and our jobs growth is at least twice as fast as any of the major advanced economies.
Productivity is up, wages growth is steady and restrained and jobs are being created (some 480 jobs a day since we came to office), economic growth is up, interest rates are down and inflation is down. Importantly the markets are up and superannuation returns and contributions are up, and there are record levels of capital expenditure expected over the coming year.
In addition, industrial disputation is down and is at one third the rate we saw under the previous Government. In the building and construction industry the rate is less than one fifth the rate we saw under the Howard Government.
Productivity is not about cutting wages or entitlements. We do not support a workplace relations system that lets important protections be undermined through the false flag of a ‘race to the bottom’ brand of flexibility.
We understand that that the drivers of productivity improvement at the enterprise level are stimulated by innovation and creativity.
We understand that engagement at all levels of the enterprise needs to occur not just during bargaining for an agreement or contract once every three or four years, but on a day to day basis.
When I think what every company and every work site I have visited over the last 20 years has taught me, it is the potential for greatness that individuals carry within them. Those workplaces showed me the limitless capacity of Australian workers and Australian businesses—and, thus, the limitless potential of the Australian economy and Australian society.
The Fair Work Act promotes this engagement.
That is why this Government is funding the creation of the Centre for Workplace Leadership to create higher performing workplaces and stronger leadership capability in Australian workplaces.
Engaged employees are productive employees.
It is also why one of the amendments in this Bill, reflecting recommendation 1 of the Review Panel is to include in the functions of the Fair Work Commission that it should promote cooperative and productive workplace relations.
This Government has also done more to support modern Australian families balance their work and life than any other Government before it.
We believe in a balanced framework that supports cooperative and productive workplace relations and promotes economic prosperity and social inclusion for all.
It was this Government that established a strong safety net comprising the National Employment Standards and modern awards, providing all employees in the federal system with clear, comprehensive and enforceable minimum terms and conditions of employment.
It was this Government that responded to the needs of carers and parents by providing employees with a right to request flexible work arrangements to help them in balancing their work and family life for the first time.
It was this Government that provided more flexible parental leave arrangements through the Fair Work Act, as well as paid parental leave and Dad and Partner Pay.
And that is why, as part of this Bill, the Government is seeking to ensure that work at hours which are not family friendly is fairly remunerated. This will be done by amending the modern awards objective to ensure that the Fair Work Commission, in carrying out its role, must take into account the need to provide additional remuneration for employees working outside normal hours, such as employees working overtime or on weekends.
The Government recognises that there are certain groups that require additional support to balance work and life, particularly those employees with special caring responsibilities.
Through the Fair Work Act Review all stakeholders, whether employers and employees, unions and employer organisations and others were given the opportunity to respond to the question: is this legislation working and what can we change to ensure this legislation is meeting its purpose?
The Fair Work Act review came after the extensive, public, consultation and drafting process we completed for the Fair Work Act:
- We released our policy proposals in workplace relations in April before the 2007 November election. We provided further detail of our policy proposals in August that year.
- We released exposure draft legislation of the National Employment Standards.
- We engaged with employee and employer representatives through the National Workplace Relations Consultative Council, through the Small Business Working Group and consultation directly with employers, employees and unions.
This is the consultative, open and engaged model I have continued as Minister for Employment and Workplace Relations.
This Bill, the Fair Work Amendment Bill 2013, represents our further response to the Fair Work Act Review recommendations, but it also represents key policy priorities of this Government.
The Bill includes new family friendly arrangements such as further flexibility in relation to unpaid parental leave, the right for pregnant women to transfer to a safe job and an expanded right to request flexible working arrangements including for working parents, for workers with caring responsibilities, workers who are of mature-age or who have a disability and those suffering family violence.
The Bill also includes new consultative requirements to recognise employees have family responsibilities outside of work that can be adversely affected when changes to employees’ rosters and regular working hours are proposed.
In response to recommendations of the House of Representatives Standing Committee on Education and Employment inquiry into workplace bullying the Bill introduces a long overdue remedy for victims being bullied at work to seek a timely recourse through the Fair Work Commission.
Bullying is a real menace in our workplaces that costs the economy as it damages productivity. Most tragically, it hurts people—sometimes with fatal consequences as my friends the Panlocks learned, to their lasting grief.
Finally the Bill provides for reforms to the right of entry regime in response to the independent Fair Work Review Panel recommendations, with amendments to better balance unions being able to represent their members professionally with the need for employers to go about their business productively.
The measures in this Bill are entirely consistent with the objective of the Fair Work Act to support cooperative and productive workplace relations.
The proposed family-friendly amendments will help parents balance their family and work commitments.
The first amendment we are proposing will increase the amount of concurrent unpaid parental leave from three weeks to eight weeks. In addition, the new eight-week period of concurrent leave will be able to be taken in separate blocks, of no less than two weeks, at any time during the first 12 months after the birth of the child.
At present concurrent leave can only be taken at the time of the birth or placement of a child. The changes will provide greater flexibility for parents in responding to the caring needs of their new child and better align with Dad and Partner Pay, which can be accessed at any time during the first 12 months after the birth of a child.
The Bill also includes two amendments aimed at ensuring the safety and wellbeing of pregnant employees.
The first of these will implement the independent Review Panel’s recommendation that any unpaid special maternity leave taken by a pregnant employee should not reduce that employee’s entitlement to unpaid parental leave.
Special maternity leave is provided for circumstances such as a woman suffering a pregnancy related illness. This amendment will ensure that the employee is not penalised when they are forced to take special maternity leave as a result of circumstances outside of her control. It will mean they retain their full entitlement to unpaid parental leave.
The second amendment is specifically aimed at protecting the safety of pregnant employees at the workplace. At present there is an express right in the Fair Work Act for a pregnant employee to transfer to a safe job where they can provide evidence that they cannot continue in their usual role due to an illness or risk arising from their pregnancy.
The right only exists for workers who have served 12 months’ service, amongst other things. We are proposing to ensure that employees who will have less than 12 months’ service at the time of birth the right to transfer to a safe job. Where no safe job is available, the employee in this situation would be eligible for unpaid no safe job leave.
This Labor Government was the first Government to introduce a legislated right to request flexible working arrangements in 2009 to allow workers to care for a child under school age or a child under 18 years with a disability.
The independent Review Panel’s report found that the right to request provisions are beneficial to both employees and employers, and a recent report from the Fair Work Commission’s General Manager found that over 90 per cent of requests for flexible working arrangements were granted by employers.
The Review Panel recommended that the right be extended to a larger range of workers, including those with caring responsibilities.
This Bill implements that recommendation by providing the right to request flexible working arrangements to:
- all employees with caring responsibilities
- an employee who is a parent, or has responsibility for the care, of a child of school age
- employees who have a disability
- employees aged 55 years and over
- employees who are experiencing family violence
- employees providing personal care, support and assistance to a member of their immediate family, or a member of their household, who requires care or support because the individual is experiencing family violence
- an employee returning from parental leave having the explicit right to request part-time work.
This Bill will also introduce new rostering protections.
We all arrange our lives around work commitments, so when work rosters change at short notice there is an impact not just on our work life, but also our family life. The unilateral imposition of changed rosters and working hours can cause particular hardship for people who have family caring responsibilities.
The amendments will place an obligation on employers to provide employees with information about changes to their roster or hours of work and consult with employees on the impact any changes will have, including on the employees’ family and caring responsibilities.
Employers must then consider any views the employees have about how the change will impact them before implementing any changes.
The proposed approach will ensure that when decisions on rostering and working conditions are made, they involve a consideration of the needs of both employers and employees.
The dispute resolution mechanisms of relevant workplace instruments will continue to apply in relation to consultation obligations in awards and enterprise agreements, including these new consultation requirements.
All Australian workers have a right to return safely home from work.
All Australian workers have a right to a safe and healthy workplace that is free from bullying and harassment.
Last year, the Government initiated a Parliamentary inquiry, chaired by the Member for Kingston, into workplace bullying in response to community concerns about the impact of bullying across Australian workplaces and industries.
Over 300 individuals and organisations gave evidence to the inquiry about the damaging, and in many cases, long-lasting effects of bullying.
The evidence to the inquiry was overwhelming that the status quo was manifestly inadequate at protecting vulnerable workers.
For workers, bullying causes physical and psychological injuries, a loss of enjoyment and satisfaction from work and, in some cases, the loss of a job and future career opportunities.
For employers, workplace bullying reduces employee morale and productivity, increases absenteeism and staff turnover, increases workers’ compensation costs and results in a loss of business reputation.
On 12 February 2013, I tabled the Government’s response to the report by the House of Representatives Standing Committee on Education and Employment—Workplace Bullying “We just want it to stop”.
The committee made 23 recommendations to eliminate and prevent bullying in the workplace and support workers and employers to respond more effectively to allegations of bullying.
One of the key issues highlighted by the Committee was the difficulty people face in trying to find a quick way to make the bullying stop so that they do not suffer further harm or injury.
The committee recommended that the Government provide an individual right of recourse to provide a new and timely mechanism to help people resolve bullying matters quickly and inexpensively.
This Bill provides that a worker who has been bullied at work will be able to make an application to the Fair Work Commission for assistance to resolve the bullying.
The Bill defines ‘bullying’ as repeated unreasonable behaviour directed towards a worker, or a group of workers of which the individual is a member, that creates a risk to health and safety.
Importantly, the Bill expressly states that reasonable management action conducted in a reasonable manner is not bullying.
To support the early resolution of matters, the Fair Work Commission will be required to commence to deal with a matter within 14 days of an application being made. This may include seeking further information from the parties, conducting a conference to try and resolve matter, or holding a hearing.
Where a worker has been bullied and the matter cannot be resolved between the parties, the Fair Work Commission will have the power to make an order to prevent bullying in the workplace in the future. While the commission will be able to make a range of orders, this will not include being able to order compensation.
Breach of an order made by the commission will attract a maximum penalty of 60 penalty units (or up to $10,200 for an individual or $51,000 for a body corporate).
This Bill is designed to complement, not replace, existing work health and safety obligations on employers and workers and the work done by work health and safety regulators.
This new individual right of recourse will encourage early intervention to stop the bullying, help people resume normal working relationships, and prevent further episodes of bullying in the workplace into the future.
Right of entry
The last set of changes in the Bill relate to right of entry.
As a Government we believe in freedom of association.
We believe that people have a right to choose to belong or not to belong to a union.
We believe that the vast majority of trade unions and employer organisations are democratic and accountable to their members. We also believe that anyone in a position of trust or responsibility in a registered organisation must comply with the law.
There are clear rules about right of entry in the Fair Work Act.
The Government’s policy intention when setting those rules and introducing the amendments in this Bill is to balance the right of employers to go about their business without undue interference with the democratic right of employees to be represented in the workplace and to participate in discussions with their union at appropriate times.
In almost all cases entry to workplaces by permit holders involves no disruption to a business’ operation. The Review Panel was however concerned that in some workplaces the frequency of visits by some unions was imposing a significant burden on employers in dealing with those visits.
It therefore recommended that the Fair Work Commission should have greater powers to deal with disputes about the frequency of right of entry visits to a workplace.
The Bill will implement that recommendation and give the Fair Work Commission the capacity to deal with disputes about the frequency of visits to hold discussions. The Fair Work Commission will be able to make any order it considers appropriate if satisfied that the frequency of visits by a permit holder or permit holders of the one union would require an unreasonable diversion of the occupier’s critical resources.
The Bill will also address the problem identified by the Review Panel in relation to disputes over the location for interviews and discussions between right of entry permit holders and eligible employees. In the vast majority of cases permit holders and employers agree on a suitable location for such visits without conflict.
In some workplaces however, evidence presented to the Review Panel showed that some employers had dictated that rooms be used which would discourage or intimidate employees from meeting with the union.
Permit holders are permitted under the Act to hold discussions with workers during mealtimes and other breaks. It is reasonable that, in clarifying the rules about location, we provide for discussions to occur in the locations where workers ordinarily spend their breaks.
The Bill therefore clarifies that in instances where a reasonable location for discussions can’t be agreed between the parties the discussions will be held in any room or area in which meal or other breaks are ordinarily taken by employees.
Permit holders will continue to be required to comply with an occupier’s reasonable request to take a particular route to reach the room or area where the discussions are to be held. The requirement that such a request by an employer will not be unreasonable only because it is not the route that the permit holder would have chosen is retained in this Bill.
The current conduct rules applying to permit holders, occupiers and employers in respect of right of entry will continue to apply unchanged.
The Fair Work Commission will maintain its powers to restrict the rights of an organisation or permit holder that has misused their entry rights.
The Government believes that all Australian workers, regardless of the location of their workplace, have a right to union representation and that unions should have fair access those workers they are entitled to represent. For this reason the Bill will introduce an obligation on an employer to facilitate access to travel and accommodation for permit holders to access certain remote locations where access can only occur by the employer assisting with transport or accommodation.
These new requirements will apply only where premises are not reasonably accessible by transport other than that provided by the occupier of the premises or that the nature of the premises means the permit holder is required to stay overnight and no accommodation other than that provided by the occupier is reasonably available.
To ensure that the rights of employees and unions are balanced with the need of the employer to carry on their business without undue interference, this obligation will not apply if it would cause the occupier undue inconvenience. Furthermore, a permit holder or union must make a request for transport or accommodation in a reasonable period of time before that transport and/or accommodation is required.
Let me be clear—the access is to facilitate right of entry, not for ‘helicopter joyrides’; this is not for employers to pay the cost of transportation. The Bill does not provide that the cost of transport and accommodation has to be paid by the employer facilitating access to the location.
What the Bill provides is that if an arrangement for accommodation or transport is made, the occupier may charge the union or permit holder that amount necessary to cover the cost of that transport and/or accommodation.
Greenfields and intractable bargaining
The Fair Work Act Review Panel extensively considered concerns about greenfields negotiations raised by stakeholders. In its report the independent Panel expressed the view that there are significant risks that bargaining practices associated with greenfields agreements could threaten investment in major projects.
The panel recommended that the Government implement amendments to the Fair Work Act providing for FWA to arbitrate to determine the content of an agreement where negotiations have reached an impasse, a specified time period has expired and conciliation has failed.
The Government supports this recommendation and I will continue to work with employers and unions on these matters with a view to introducing further legislative reforms in this area during the Winter Sittings.
In conclusion, this Bill reflects the Government’s commitment to improving the lives of Australian workers, whilst supporting business flexibility and profitability.
These modest, balanced and pragmatic enhancements to the Fair Work Act proposed in this Bill will further encourage productive, collaborative and clever workplaces.
It will also provide certainty for employers in key areas while ensuring that all workers, especially those with family and caring responsibilities, can effectively participate in the workforce and be represented at work.
This Bill implements several of the recommendations of the Review Panel and is the result of extensive consultation with both employer and employee stakeholders during the review and since the review report was published last year.
As I said when I stood here in October 2012 introducing the Fair Work Amendment Bill 2012, I and the Government will keep an open mind on the remaining recommendations of the Fair Work Act Review Panel and other measures to improve the operation of the Fair Work framework.
We are committed to working with all stakeholders to implement further changes if there is clear policy justification and changes reflect the Government's overall policy of maintaining a fair, flexible and productive workplace relations framework.
I believe we can do more to harness the capacity of Australian people.
To do this, we need to cut across the old narratives of conflict and division. I have experienced first-hand many examples of cooperation, compromise and pragmatism at workplaces around Australia. There are many untold success stories of business and workers that should be told and should be celebrated. We must move from a stuck in a business-as-usual routine to support those who pursue innovation, knowledge and creativity. Those are the drivers of economic growth and must be the drivers of our future. Those are the drivers that will unlock the full potential of our workplaces and create good jobs.
I urge all members to support this Bill and support its passage through the Parliament. I commend the Bill to the House.