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senate vote 2019-11-12#2

Edited by mackay

on 2020-07-31 09:46:44

Title

  • Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019 - in Committee
  • Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019 - in Committee - Non-registered agreements

Description

  • The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2019-11-12.14.1) introduced by NSW Senator [Jenny McAllister](https://theyvoteforyou.org.au/people/senate/nsw/jenny_mcallister) (Labor), which means it failed.
  • Senator McAllister [explained that](https://www.openaustralia.org.au/senate/?gid=2019-11-12.14.1):
  • > *This amendment will ensure that non-registered agreements between workers and employers, which provide workers with additional protections agreed by employers, should be safeguarded in the event of [divestment](https://www.marketforces.org.au/info/key-issues/divestment/).*
  • In broad terms, 'divestment' is the opposite of investment in that it involves removing money that's been invested in a particular place.
  • ### Amendment text
  • > *(1) Schedule 1, item 1, page 27 (after line 22), at the end of section 153ZB, add:*
  • >
  • > *(10) If:*
  • >
  • >> *(a) a body corporate (the disposing entity) that is a national system employer (within the meaning of the Fair Work Act 2009) is ordered to dispose of interests in securities or assets to a person (the receiving entity); and*
  • >>
  • >> *(b) a provision of Part 2-8 of that Act would not apply, despite subsection (9), because a workplace instrument (the applicable instrument) that covered the disposing entity and an employee (the applicable employee) of the entity is not a transferable instrument (within the meaning of that Part);*
  • >>
  • >> *Part 2-8 of that Act applies as if:*
  • >>
  • >> *(c) a reference to an old employer in that Part included a reference to the disposing entity; and*
  • >>
  • >> *(d) a reference to a new employer in that Part included a reference to the receiving entity; and*
  • >>
  • >> *(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and*
  • >>
  • >> *(f) a reference to a transferable instrument in that Part included a reference to the applicable instrument.*
  • >
  • > *(11) If:*
  • >
  • >> *(a) a body corporate (the disposing entity) that is a State public sector employer of a State (within the meaning of the Fair Work Act 2009) is ordered to dispose of interests in securities or assets to a person (the receiving entity) that is a national system employer; and*
  • >>
  • >> *(b) a provision of Part 6-3A of that Act would not apply, despite subsection (9), because a workplace instrument (the applicable instrument) that covered the disposing entity and an employee (the applicable employee) of the entity is not a State award (within the meaning of that Part);*
  • >>
  • >> *Part 6-3A of that Act applies as if:*
  • >>
  • >> *(c) a reference to an old State employer in that Part included a reference to the disposing entity; and*
  • >>
  • >> *(d) a reference to a new employer in that Part included a reference to the receiving entity; and*
  • >>
  • >> *(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and*
  • >>
  • >> *(f) a reference to a State award in that Part included a reference to the applicable instrument.*
  • >> *(f) a reference to a State award in that Part included a reference to the applicable instrument.*
senate vote 2019-11-12#2

Edited by mackay

on 2020-07-31 09:46:26

Title

  • Bills — Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019; in Committee
  • Treasury Laws Amendment (Prohibiting Energy Market Misconduct) Bill 2019 - in Committee

Description

  • <p class="speaker">Mathias Cormann</p>
  • <p>I move government amendment (1) on sheet ZA499:</p>
  • <p class="italic">(1) Schedule 1, item 1, page 27 (after line 22), at the end of Division 6, add:</p>
  • The majority voted against an [amendment](https://www.openaustralia.org.au/senate/?gid=2019-11-12.14.1) introduced by NSW Senator [Jenny McAllister](https://theyvoteforyou.org.au/people/senate/nsw/jenny_mcallister) (Labor), which means it failed.
  • Senator McAllister [explained that](https://www.openaustralia.org.au/senate/?gid=2019-11-12.14.1):
  • > *This amendment will ensure that non-registered agreements between workers and employers, which provide workers with additional protections agreed by employers, should be safeguarded in the event of [divestment](https://www.marketforces.org.au/info/key-issues/divestment/).*
  • In broad terms, 'divestment' is the opposite of investment in that it involves removing money that's been invested in a particular place.
  • ### Amendment text
  • > *(1) Schedule 1, item 1, page 27 (after line 22), at the end of section 153ZB, add:*
  • >
  • > *(10) If:*
  • >
  • >> *(a) a body corporate (the disposing entity) that is a national system employer (within the meaning of the Fair Work Act 2009) is ordered to dispose of interests in securities or assets to a person (the receiving entity); and*
  • >>
  • >> *(b) a provision of Part 2-8 of that Act would not apply, despite subsection (9), because a workplace instrument (the applicable instrument) that covered the disposing entity and an employee (the applicable employee) of the entity is not a transferable instrument (within the meaning of that Part);*
  • >>
  • >> *Part 2-8 of that Act applies as if:*
  • >>
  • >> *(c) a reference to an old employer in that Part included a reference to the disposing entity; and*
  • >>
  • >> *(d) a reference to a new employer in that Part included a reference to the receiving entity; and*
  • >>
  • >> *(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and*
  • >>
  • >> *(f) a reference to a transferable instrument in that Part included a reference to the applicable instrument.*
  • >
  • > *(11) If:*
  • >
  • >> *(a) a body corporate (the disposing entity) that is a State public sector employer of a State (within the meaning of the Fair Work Act 2009) is ordered to dispose of interests in securities or assets to a person (the receiving entity) that is a national system employer; and*
  • >>
  • >> *(b) a provision of Part 6-3A of that Act would not apply, despite subsection (9), because a workplace instrument (the applicable instrument) that covered the disposing entity and an employee (the applicable employee) of the entity is not a State award (within the meaning of that Part);*
  • >>
  • >> *Part 6-3A of that Act applies as if:*
  • >>
  • >> *(c) a reference to an old State employer in that Part included a reference to the disposing entity; and*
  • >>
  • >> *(d) a reference to a new employer in that Part included a reference to the receiving entity; and*
  • >>
  • >> *(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and*
  • >>
  • >> *(f) a reference to a State award in that Part included a reference to the applicable instrument.*
  • <p class="italic">153ZBA Arrangements or undertakings in relation to employees</p>
  • <p class="italic">(1) This section applies if:</p>
  • <p class="italic">(a) a body corporate (the <i>old employer</i>) has made arrangements or undertakings in relation to employees of the body corporate (whether or not those arrangements or undertakings bind the old employer); and</p>
  • <p class="italic">(b) the Court makes an order under subsection 153ZB(2) or (3) for the old employer to dispose of assets; and</p>
  • <p class="italic">(c) the old employer disposes of the assets to another entity (the <i>new employer</i>); and</p>
  • <p class="italic">(d) regulations made for the purposes of this paragraph before the disposal specify requirements in respect of arrangements or undertakings in relation to employees; and</p>
  • <p class="italic">(e) the arrangements or undertakings satisfy those requirements.</p>
  • <p class="italic">(2) The new employer must comply with the arrangements or undertakings.</p>
  • <p class="italic">(3) Subsection (2) applies despite anything in the <i>Fair Work Act 2009</i>.</p>
  • <p>I might make a few quick remarks on this amendment.</p>
  • <p class="speaker">Jenny McAllister</p>
  • <p>I had understood that the opposition would move its amendment on the same matter first.</p>
  • <p class="speaker">David Fawcett</p>
  • <p>I'm in the hands of the chamber. Senator McAllister, you have the call.</p>
  • <p class="speaker">Jenny McAllister</p>
  • <p>Thank you. I move amendment (1) on sheet 8794 circulated in my name:</p>
  • <p class="italic">(1) Schedule 1, item 1, page 27 (after line 22), at the end of section 153ZB, add:</p>
  • <p class="italic">(10) If:</p>
  • <p class="italic">(a) a body corporate (the <i>disposing entity</i>) that is a national system employer (within the meaning of the <i>Fair Work Act 2009</i>) is ordered to dispose of interests in securities or assets to a person (the <i>receiving entity</i>); and</p>
  • <p class="italic">(b) a provision of Part 2-8 of that Act would not apply, despite subsection (9), because a workplace instrument (the <i>applicable instrument</i>) that covered the disposing entity and an employee (the <i>applicable employee</i>) of the entity is not a transferable instrument (within the meaning of that Part);</p>
  • <p class="italic">Part 2-8 of that Act applies as if:</p>
  • <p class="italic">(c) a reference to an old employer in that Part included a reference to the disposing entity; and</p>
  • <p class="italic">(d) a reference to a new employer in that Part included a reference to the receiving entity; and</p>
  • <p class="italic">(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and</p>
  • <p class="italic">(f) a reference to a transferable instrument in that Part included a reference to the applicable instrument.</p>
  • <p class="italic">(11) If:</p>
  • <p class="italic">(a) a body corporate (the <i>disposing entity</i>) that is a State public sector employer of a State (within the meaning of the <i>Fair Work Act 2009</i>) is ordered to dispose of interests in securities or assets to a person (the <i>receiving entity</i>) that is a national system employer; and</p>
  • <p class="italic">(b) a provision of Part 6-3A of that Act would not apply, despite subsection (9), because a workplace instrument (the <i>applicable instrument</i>) that covered the disposing entity and an employee (the <i>applicable employee</i>) of the entity is not a State award (within the meaning of that Part);</p>
  • <p class="italic">Part 6-3A of that Act applies as if:</p>
  • <p class="italic">(c) a reference to an old State employer in that Part included a reference to the disposing entity; and</p>
  • <p class="italic">(d) a reference to a new employer in that Part included a reference to the receiving entity; and</p>
  • <p class="italic">(e) a reference to a transferring employee in that Part included a reference to the applicable employee; and</p>
  • <p class="italic">(f) a reference to a State award in that Part included a reference to the applicable instrument.</p>
  • <p>In the debate in the other place, Labor moved amendments to ensure that entitlements that are contained in registered enterprise agreements and in awards are preserved and protected for workers in the case of a forcible divestiture. Following the Senate inquiry into the bill, it became clear that a similar issue exists for non-registered agreements between workers and employers in the context of possible divestiture. The evidence suggested this was particularly significant at Liddell Power Station, where the workers have obtained important commitments from the employer, through their union, in relation to employment after Liddell's scheduled closure. The union and the workers understandably seek to preserve these commitments in the event of divestiture.</p>
  • <p>This amendment accepts that no worker at Liddell or elsewhere should be worse off as a result of divestiture, which is a remedy for prohibited conduct that workers themselves have no part in. This amendment will ensure that non-registered agreements between workers and employers, which provide workers with additional protections agreed by employers, should be safeguarded in the event of divestment. I commend the amendment to the Senate.</p>
  • <p class="speaker">Mathias Cormann</p>
  • <p>The government will not be supporting this amendment. The Senate would be aware that the government has already moved amendments in the House of Representatives to ensure that under any forced divestiture the transfer-of-business provisions in the Fair Work Act would apply and provide all of the appropriate protections in the context of transfer-of-business provisions to employees. The proposed amendment would cause the transfer-of-business provisions in the Fair Work Act 2009 to apply more broadly in the case of divestiture scenarios than they would under any ordinary sale of assets. The proposed amendment would alter the way the transfer-of-business provisions in the Fair Work Act apply in the case of divestiture under the bill by expanding the types of arrangements covered by the transfer-of-business provisions. Where relevant circumstances are satisfied, the transfer-of-business provisions will ordinarily apply to a transferable instrument such as an enterprise agreement. The proposed amendment would expand the scope of arrangements to which the transfer-of-business provisions apply to a broader class of instruments, namely any workplace instrument. The proposed amendment would mean that there are additional rights conferred in the case of divestiture that are over and above those currently contained in the Fair Work Act 2009 for usual transfer-of-business situations.</p>
  • <p>Even more concerning from the government's point of view, it is unclear precisely what additional instruments the proposed amendments would pick up. It would be a blanket obligation under the legislation to act consistent with any non-registered agreement, and we don't believe that that is desirable. We believe that it is preferable, in sharing the same objective, to ensure that, in the context of a forced divestiture, employee entitlements are properly protected. We believe it is preferable to give the government of the day the discretion to deal with any such non-registered agreements on a case-by-case basis to assess the public interest in each circumstance. That is why the government flag that we will be moving government amendments to give the Treasurer the regulation-making power to deal with non-registered agreements in that way.</p>
  • <p class="speaker">Sarah Hanson-Young</p>
  • <p>I place on the record the support of the Greens for the opposition's amendment. Of course, we want to find ways to ensure that workers are indeed protected, and particularly those in relation to the fiasco that this government has created for the workers of Liddell. Let me put clearly on the record: we are disappointed that Labor are voting with the government on this piece of legislation. Yes, there have been some improvements in relation to workers' entitlements, but the overall impact of this bill, making climate change worse by allowing these polluting clunkers of power stations to remain open for longer, is only going to make it harder and harder for Australia to transition in a way that the science, the community and anyone who understands what's going on today would accept needs to happen.</p>
  • <p class="italic">The CHAIR: The question is that amendment (1) on sheet 8794, as moved by Senator McAllister, be agreed to.</p>