Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move opposition amendments (1) and (2) on sheet 5817:

(1)    Schedule 3, item 23, page 34 (lines 5 to 11), omit subitem (1) and note 1, substitute:

(1)    Where a transitional instrument deals with a matter that is dealt with under the National Employment Standards, the transitional instrument is of no effect to the extent that the overall entitlements of the transitional instrument in relation to the matter are detrimental to the employee when compared to the overall entitlements of the National Employment Standards in relation to the matter.

(2)    Schedule 3, item 23, page 34 (line 23), omit “in any respect”.

I do not seek to delay the Senate too long, but it is noteworthy that, whilst the minister rejected my assertions in relation to the previous matter, he did not deny that the deal with Senator Fielding was incorporated in the original legislation or that it was incorporated in all the amendments moved in the House that have only come in at this very late stage, which I think makes my point.

I move on to the two amendments that I have moved on behalf of the coalition dealing with the no detriment rule. These amendments seek to remove the line by line approach to the concept of detriment as it relates to the interaction of the National Employment Standards with transitional instruments. The amendments will ensure that the interaction between the National Employment Standards and transitional instruments is such that it is now assessed on an overall basis when a comparison occurs.

Those of us who were privileged to be part of the Senate inquiry into this heard some very compelling evidence from the WA Chamber of Commerce and Industry. They provided us with some examples of adopting a line by line approach in relation to the National Employment Standards. Here is a very good one. It involves, for example, one national employment standard, being the right to be absent on a public holiday, being traded off for an increased national employment standard in another area, being an additional two weeks annual leave. When compared overall to the National Employment Standards in their standard form—for example, an ability to not work on public holidays and only four weeks leave—the employees suffer no detriment. However, approaching the same situation with a line by line approach in the bill, the below situation would result in the employees still receiving the benefit of six weeks leave by also receiving the benefit of the public holiday national employment standard that would see them not obliged to work on public holidays. This means that the interaction of the national employment standard would retrospectively undo the agreement previously reached within that sector as approved by the courts and, very tellingly, by the unions and the employer.

These amendments only seek to deal—and I stress this—with the retrospective interaction of the National Employment Standards with existing instruments and do not have any application to any new or future instruments that may be made. They are merely to deal with the National Employment Standards interaction with existing settled arrangements. These amendments seek to ensure that the NES can apply universally in a manner that ensures no employees are worse off and that they enjoy the same conditions as the NES but on an overall basis that avoids unintended double-dipping. There is no doubt that double-dipping will occur with the excellent example supplied by the Western Australian Chamber of Commerce and Industry.

I could talk at some length on the no detriment rule and its impact on annual leave and public holidays in the health industry. In fact, it might be worth while giving that as a quick example. The WA Chamber of Commerce and Industry submission states:

In the health industry, union and employee collective agreements often contain terms that provide an employee 6 weeks annual leave whereby 2 weeks constitute leave in lieu of public holidays.

It is interesting to note that those agreements were arrived at with the agreement of the trade union movement in the first place. That is a very important consideration to keep in mind here. The submission continues:

This provision is included because as a 24 hour operation it is necessary that staffing levels continue during public holidays and as such employees are expected as part of their contract of employment to be available to work on public holidays.

                  …              …              …

The following excerpts are taken from a union collective agreement made in 2008 and also replicate the provisions of the Private Hospital and Residential Aged Care (Nursing Homes) Award 2002 (clauses 26 and 27), which would have been used to determine whether the agreement passed the no-disadvantage test …

The Western Australian Chamber of Commerce and Industry have set that out in some detail in their submission. Given the time constraints, I will not read all the detail out. Suffice to say that the case was made exceptionally well. It runs counter to what the union movement agreed and consented to as a reasonable circumstance. All we are saying is that the NES should not be applied retrospectively in the circumstances that I have outlined. I commend the amendments to the Senate.