Division Description Changes — Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; in Committee — 1st Dec 2022

Change	Division
senate vote 2022-12-01#7 Edited by mackay staff on 2022-12-08 11:52:51	Title Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; in Committee Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 - in Committee - Statutory review and grace period Description ~~<p class="speaker">Michaelia Cash</p>~~ <p>Chair, am I allowed to make a statement in relation to this?</p> The majority voted in favour of [amendments](https://www.openaustralia.org.au/senate/?gid=2022-12-01.411.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they will now be included in the bill. ### What were the amendments? Senator Pocock [explained that](https://www.openaustralia.org.au/senate/?gid=2022-12-01.411.1): > The amendments on Sheet 1780 ensure that there will be a statutory review no later than two years after the commencement of the legislation. The review will look at, among other things, whether the operation of the amendments made by this act is appropriate and effective and identify any unintended consequences of the amendment made by this act and whether amendments to the Fair Work Act 2009 or any other legislation are necessary to improve the operation of the amendments made by this act or rectify any unintended consequences identified. The persons who conduct the review must give the minister a written report of the review within six months of the commencement of the review, and the minister must then table a copy of the report within 15 sitting days. The amendment on sheet 1781 effectively extends the grace period from six months to nine months by altering the minimum bargaining period. This was something that came up repeatedly in the committee process. ### Amendment text > SHEET 1780 > > (1) Clause 2, page 2 (table item 1, column 1), omit "3", substitute "4". > > (2) Page 6 (after line 8), after clause 3, insert: > >> 4 Review of operation of amendments >> >> (1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act. >> >> (2) Without limiting the matters that may be considered when conducting the review, the review must: >> >>> (a) consider whether the operation of the amendments made by this Act is appropriate and effective; and >>> >>> (b) identify any unintended consequences of the amendments made by this Act; and >>> >>> (c) consider whether amendments to the Fair Work Act 2009,or any other legislation, are necessary to: >>> >>>> (i) improve the operation of the amendments made by this Act; or >>>> >>>> (ii) rectify any unintended consequences identified under paragraph (b). >> >> (3) The review must start no later than 2 years after this section commences. >> >> (4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review. >> >> (5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report. > > SHEET 1781 > > (1) Schedule 1, item 543, page 183 (line 20) to page 184 (line 3), omit subsection 235(5), substitute:* > >> End of the minimum bargaining period >> >> (5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is: >> *>>> (a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the fo*llowing: >>> >>>> (i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements; >>>> >>>> (ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or >>> >>> (b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6). >> *>> (6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agree*ment is: >> *>>> (a) if a supported bargaining authorisation or single interest employer authorisation is in operation i*n relation to the proposed agreement—the day that the authorisation first comes into operation; or >>> >>> (b) otherwise—the notification time for the proposed agreement. <p class="italic">The CHAIR: Well, we're in committee, so, Senator Cash, you have the call.</p> <p>Thank you very much. In relation to the statement that you have just made, let me be very clear to this place: I disagree with it. The reason I disagree with it is this: we are moving amendments to protect small and medium businesses in Australia from being compelled to bargain against their will in circumstances that they have never asked for. Chair, with all due respect, if you are telling me there is not a difference between a small business that has 20 employees and a business that has 200, I'm going to call you out and say you are wrong. If you are telling me that there is no difference between a small business in Australia that has 20 employees and one that has 175, I'll tell you you are wrong. If you are telling me there is no difference between a small business in Australia that has 20 employees and one that has 150 employees, again, Chair, you are wrong. If you are telling me that there is no difference between a small business in Australia and a business that has 125 employees, I am telling you you are wrong. If you are telling me there is no difference between a small business in Australia and a business that has 100 employees, I am telling you you are wrong.</p> ~~<p class="italic">The CHAIR: Senator McKim?</p>~~ ~~<p class="speaker">Nick McKim</p>~~ <p>On a point of order, Chair, I just seek your guidance in terms of Senator Cash's direct criticism of a ruling that you have just made—and, if I might add, a complete mischaracterisation of what you've just said. It is my understanding that is well out of order, and I ask you for a ruling on that, please.</p> <p class="italic">The CHAIR: I was allowing Senator Cash to make a contribution, but I have made the ruling. The ruling was made on the advice of the Clerk, and my characterisation of Senator Cash's contribution is consistent with yours, in that it's a criticism of my ruling. My ruling stands. Senator Cash, the ruling is in relation to the application of the standing orders. It doesn't apply to the actual amendment to the definition itself, which is what your contribution entails. The standing order says that you cannot make further amendments when an amendment has already been agreed to, in that the will of the Committee of the Whole has already been declared or articulated by the committee, and therefore to criticise the ruling is to criticise the decision of the Committee of the Whole. I'm prepared to give you the call again, but, if you wish to continue down the line you're taking, I will not give you the call.</p> ~~<p class="speaker">Michaelia Cash</p>~~ <p>CASH (—) (): Thank you, Chair. What I will say is this: this is, without a doubt, one of the greatest travesties that businesses in Australia will ever face. The difference, quite frankly, between a business with 20 employees and a business with 21 employees is material to this debate. Why? Because a business with 20 or fewer is now excluded from the single stream of multi-employer bargaining. They can, yes, be compelled into the supported stream and they will face costs set out in the government's regulatory impact statement of around $14½ thousand.</p> <p>But you see, Chair, with this ruling, which I respectfully disagree with, a business with but one more employee will now face costs of in excess of $80,000 per business. Colleagues, I remind you that in the regulatory impact statement it was $75½ thousand until during the committee stage when, amazingly, we were able to pick up that—and I quote the Minister of the Small Business, such is her contempt for small business—'the $5,000 was merely a typo'. That $5,000 means that businesses in Australia, according to the ruling that has been made, with 21 or more employees will now still be roped into—are able to be compelled into—the changes to the single-interest multi-employer bargaining stream against their will. Potentially, they will be bargaining with their competitors. The costs are set out clearly in the regulatory impact statement: $75½ thousand plus the small typo of $5,000.</p> <p>So to every business in Australia: this bill is going to pass and it's going to pass very soon. But let me be very, very clear on behalf of the Leader of the Opposition, Peter Dutton, on behalf of the Deputy Leader of the Opposition, Susan Ley, and on behalf of every member of the Liberal and National parties in this place and in the other: we will never stop defending you. We will stand by you every single step of the way. The fact is that this ruling says, quite frankly, there is no difference. I say shame on the ruling, quite frankly! Shame on Labor and your contempt for small business and business in Australia—</p> ~~<p class="italic">The CHAIR: Senator Cash, your criticisms of me are totally out of order!</p>~~ ~~<p>I'm criticising the ruling.</p>~~ ~~<p class="italic">The CHAIR: I ask you to withdraw them.</p>~~ <p>I withdraw, Chair. I am merely criticising the fact that, with this ruling, we are unable now to stand up for businesses in Australia with 200, 175, 150, 100, 75, 50 or 25 employees. On behalf of all Liberals and Nationals across Australia, the fight doesn't stop. We've got your back and we'll stand up for you every day of the week.</p> ~~<p class="italic">The CHAIR: Senator Pocock, you have the call.</p>~~ ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Michaelia Cash~~
Chair, am I allowed to make a statement in relation to this?
The majority voted in favour of [amendments](https://www.openaustralia.org.au/senate/?gid=2022-12-01.411.1) introduced by ACT Senator [David Pocock](https://theyvoteforyou.org.au/people/senate/act/david_pocock) (Independent), which means they will now be included in the bill.
### What were the amendments?
Senator Pocock [explained that](https://www.openaustralia.org.au/senate/?gid=2022-12-01.411.1):
> *The amendments on Sheet 1780 ensure that there will be a statutory review no later than two years after the commencement of the legislation. The review will look at, among other things, whether the operation of the amendments made by this act is appropriate and effective and identify any unintended consequences of the amendment made by this act and whether amendments to the Fair Work Act 2009 or any other legislation are necessary to improve the operation of the amendments made by this act or rectify any unintended consequences identified. The persons who conduct the review must give the minister a written report of the review within six months of the commencement of the review, and the minister must then table a copy of the report within 15 sitting days. The amendment on sheet 1781 effectively extends the grace period from six months to nine months by altering the minimum bargaining period. This was something that came up repeatedly in the committee process.*
### Amendment text
> *SHEET 1780*
>
> *(1) Clause 2, page 2 (table item 1, column 1), omit "3", substitute "4".*
>
> *(2) Page 6 (after line 8), after clause 3, insert:*
>
>> *4 Review of operation of amendments*
>>
>> *(1) The Minister must cause a review to be conducted of the operation of the amendments made by this Act.*
>>
>> *(2) Without limiting the matters that may be considered when conducting the review, the review must:*
>>
>>> *(a) consider whether the operation of the amendments made by this Act is appropriate and effective; and*
>>>
>>> *(b) identify any unintended consequences of the amendments made by this Act; and*
>>>
>>> *(c) consider whether amendments to the Fair Work Act 2009,or any other legislation, are necessary to:*
>>>
>>>> *(i) improve the operation of the amendments made by this Act; or*
>>>>
>>>> *(ii) rectify any unintended consequences identified under paragraph (b).*
>>
>> *(3) The review must start no later than 2 years after this section commences.*
>>
>> *(4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.*
>>
>> *(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.*
>
> *SHEET 1781*
>
> (1) Schedule 1, item 543, page 183 (line 20) to page 184 (line 3), omit subsection 235(5), substitute:*
>
>> *End of the minimum bargaining period*
>>
>> *(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:*
>>
>>> *(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following:*
>>>
>>>> *(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;*
>>>>
>>>> *(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or*
>>>
>>> *(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).*
>>
>> *(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:*
>>
>>> *(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or*
>>>
>>> *(b) otherwise—the notification time for the proposed agreement.*
The CHAIR: Well, we're in committee, so, Senator Cash, you have the call.
Thank you very much. In relation to the statement that you have just made, let me be very clear to this place: I disagree with it. The reason I disagree with it is this: we are moving amendments to protect small and medium businesses in Australia from being compelled to bargain against their will in circumstances that they have never asked for. Chair, with all due respect, if you are telling me there is not a difference between a small business that has 20 employees and a business that has 200, I'm going to call you out and say you are wrong. If you are telling me that there is no difference between a small business in Australia that has 20 employees and one that has 175, I'll tell you you are wrong. If you are telling me there is no difference between a small business in Australia that has 20 employees and one that has 150 employees, again, Chair, you are wrong. If you are telling me that there is no difference between a small business in Australia and a business that has 125 employees, I am telling you you are wrong. If you are telling me there is no difference between a small business in Australia and a business that has 100 employees, I am telling you you are wrong.
~~The CHAIR: Senator McKim?~~
~~Nick McKim~~
On a point of order, Chair, I just seek your guidance in terms of Senator Cash's direct criticism of a ruling that you have just made—and, if I might add, a complete mischaracterisation of what you've just said. It is my understanding that is well out of order, and I ask you for a ruling on that, please.
The CHAIR: I was allowing Senator Cash to make a contribution, but I have made the ruling. The ruling was made on the advice of the Clerk, and my characterisation of Senator Cash's contribution is consistent with yours, in that it's a criticism of my ruling. My ruling stands. Senator Cash, the ruling is in relation to the application of the standing orders. It doesn't apply to the actual amendment to the definition itself, which is what your contribution entails. The standing order says that you cannot make further amendments when an amendment has already been agreed to, in that the will of the Committee of the Whole has already been declared or articulated by the committee, and therefore to criticise the ruling is to criticise the decision of the Committee of the Whole. I'm prepared to give you the call again, but, if you wish to continue down the line you're taking, I will not give you the call.
~~Michaelia Cash~~
CASH (—) (): Thank you, Chair. What I will say is this: this is, without a doubt, one of the greatest travesties that businesses in Australia will ever face. The difference, quite frankly, between a business with 20 employees and a business with 21 employees is material to this debate. Why? Because a business with 20 or fewer is now excluded from the single stream of multi-employer bargaining. They can, yes, be compelled into the supported stream and they will face costs set out in the government's regulatory impact statement of around $14½ thousand.
But you see, Chair, with this ruling, which I respectfully disagree with, a business with but one more employee will now face costs of in excess of $80,000 per business. Colleagues, I remind you that in the regulatory impact statement it was $75½ thousand until during the committee stage when, amazingly, we were able to pick up that—and I quote the Minister of the Small Business, such is her contempt for small business—'the $5,000 was merely a typo'. That $5,000 means that businesses in Australia, according to the ruling that has been made, with 21 or more employees will now still be roped into—are able to be compelled into—the changes to the single-interest multi-employer bargaining stream against their will. Potentially, they will be bargaining with their competitors. The costs are set out clearly in the regulatory impact statement: $75½ thousand plus the small typo of $5,000.
So to every business in Australia: this bill is going to pass and it's going to pass very soon. But let me be very, very clear on behalf of the Leader of the Opposition, Peter Dutton, on behalf of the Deputy Leader of the Opposition, Susan Ley, and on behalf of every member of the Liberal and National parties in this place and in the other: we will never stop defending you. We will stand by you every single step of the way. The fact is that this ruling says, quite frankly, there is no difference. I say shame on the ruling, quite frankly! Shame on Labor and your contempt for small business and business in Australia—
~~The CHAIR: Senator Cash, your criticisms of me are totally out of order!~~
~~I'm criticising the ruling.~~
~~The CHAIR: I ask you to withdraw them.~~
I withdraw, Chair. I am merely criticising the fact that, with this ruling, we are unable now to stand up for businesses in Australia with 200, 175, 150, 100, 75, 50 or 25 employees. On behalf of all Liberals and Nationals across Australia, the fight doesn't stop. We've got your back and we'll stand up for you every day of the week.
~~The CHAIR: Senator Pocock, you have the call.~~
~~Long debate text truncated.~~