Transitional bills through parliament; Government meets horticultural, aged care industries

18 June 2009

Federal parliament has passed the Rudd Government's transitional IR legislation, with the Government getting its amendments up and independent Senator Nick Xenophon winning approval for his requirement that the AIRC consider the effect on industry of its modern awards.

The House of Representatives voted up the amended Fair Work (Transitional Provisions and Consequential Amendments Bill) 2009 this morning after the Senate debate finished yesterday (see from page one of Hansard) with all the Opposition's amendments defeated.

Senator Xenophon's award modernisation amendment requires (as an addition to Schedule 5, item 2, sub item (5)) the AIRC to consider the likely effects on the relevant industry or industry sector of any modern award that it is likely to make, including on productivity, labour costs and the regulatory burden on business.

He told the Senate he had received "a number of representations" from the horticulture sector, particularly in the SA Riverland, and his amendment took those concerns into account.

In backing the bill (as did the Opposition and the Greens), ALP Senator Mark Arbib, representing Workplace Relations Minister Julia Gillard, confirmed that horticulture was one of the industries that was following the restaurant and catering sector in lobbying the Minister over award modernisation.

He said Gillard's office and DEEWR had met with representatives from the sector - including the Horticulture Advisory Leadership Council, AiG, the NFF and Fruit Grower Tasmania - on May 26, and further correspondence and submissions had since been received. A day earlier, Gillard's office had met representatives from aged care.

The Minister, he said, would "make a judgment in relation to aged care and horticulture on the merits of the case".

Asked by Liberal Senator Mary Jo Fisher about wine grape growers - who have also written to the Minister -- Senator Arbib said the Government would "engage" with them.

"At the same time, given the AIRC is yet to consider their issues and on May 22 asked for submissions from them, the government strongly encourages those employers to engage with that process," he said.

Senator Xenophon on Tuesday also got up an amendment on disputes over the BOOT test, which would give Fair Work Australia the power to compare entitlements in dispute on a line-by-line basis or, alternatively, on a like-by-like basis.

All the Opposition's amendments were defeated in the Senate, though one that would have had a significant impact on award modernisation - ALP Senator Gavin Marshall argued the process would be "sabotaged" - was originally voted up after Greens Leader Bob Brown missed the division (Liberal Senator Ian Macdonald said he was "probably out counting his %5Bdonation] money").

The amendment would have compelled Gillard to amend her award modernisation request to create standalone modern awards - along the lines of her recent direction to create a restaurants and catering award - where any one of eight criteria are present in an industry, including low profit margins, high award-dependency, high labour intensity, and limited capacity to bear increases in operating cost.

Senator Brown had earlier this year called the Opposition a "rabble" after a missed vote, and it was only after Liberal Senator Eric Abetz revelled in the reversal of circumstances that the Opposition agreed to a recount - in which its amendment went down.

The Greens' amendments - including that the FWA be allowed to terminated sub-standard Work Choices agreements, and giving new collective agreements priority over existing AWAs and ITEAs - were also defeated.

Government's amendments

As reported by Workplace Express yesterday, the most significant of the Government amendments (see also the supplementary explanatory memorandum - all of which were supported by the Opposition - will allow bargaining representatives to apply to Fair Work Australia for orders to ensure protected action authorisations survive the July 1 cut-off (see Related Article).

Other amendments include the unfair dismissal changes to give effect to the Government's 11th hour deal with Senator Steve Fielding to define any employer with fewer than 15 full-time equivalent employees as small business for unfair dismissal purposes until January 1, 2011, after which the 15-employee-by-headcount threshold will apply.

The Government amendments also allow federally-registered unions or employer groups to extend their eligibility rules to reflect the broader rules of an equivalent State organisation and ensure settled demarcations are not upset in the process.

In addition to its award modernisation amendments, the Opposition had sought to:

·  add "business profitability" to a list of matters Fair Work Australia was required to consider in making modern awards.

·  provide a power for FWA to make a "relief from increased labour costs order" to protect employers from labour cost increases flowing from modern awards;

·  limit the AIRC’s discretion on phasing-out of state-based differences in award conditions, by making the five-year period the default, while allowing the Commission to choose a shorter phase-out period after considering the views of the industry and the effects on employment;

·  require Fair Work Australia to take into account any previous representation-related judicial or administrative decisions or orders and the views of the business; and

·  ensure that any complying super fund can be a default fund, displacing the current regime under which industry funds are treated as default funds.

The Government's States referral legislation - Fair Work (State Referral & Consequential & Other Amendments) Bill - was passed unamended yesterday.

Original article: Workplace Express – www.workplaceexpress.com.au