1.1
While expressing in-principle support for improvements to the enterprise
bargaining process, Labor senators also have reservations about aspects of some
of the proposed reforms.
1.2
Labor Senators are concerned that aspects of the provisions concerning
the abolition of the four yearly reviews may be misconstrued. The terms of the
transitional provision in Item 26(1) of Schedule 4 reads:
26 Incomplete review of modern award
Scope
(1) This clause applies in relation to a review of a modern
award conducted as part of a 4 yearly review of modern awards if:
(a) the review of the modern award commenced before the Schedule
1 commencement day; and
(b) immediately before that day, the review of the modern
award had not been completed.
1.3
The purpose of this provision is to allow incomplete four yearly reviews
to be completed if they are still on foot at the time the abolition comes into
effect.
1.4
However, the provision might be misconstrued as referring only to what
the Fair Work Commission has described as the 'award stage' of the Review,
where modern awards are reviewed individually. There is also the 'common issues'
stage of the 4 yearly review, where multiple awards are reviewed in relation to
a particular issue. For example, in March 2017 the FWC handed down a decision
on whether a clause for domestic violence leave should be inserted into modern
awards.[1]
1.5
In common issues matters, the number and identity of awards that will be
affected by a decision of the Fair Work Commission are not known until the
conclusion of the proceedings. Multiple awards may be reviewed at the same
time, and each award may be reviewed more than once for different purposes.
1.6
Labor Senators note the concern raised by the ACTU that the transitional
provisions may not apply to the 'common issues' stage of the 4 yearly review.[2]
This could result in consideration of common issues being terminated
prematurely when the abolition of the four yearly reviews comes into effect.
1.7
We are concerned to ensure that Item 26 does not limit the breadth of
issues considered during the common issues stage. We would prefer that the bill
be redrafted to make it clear that this stage falls within the transitional
provisions allowing for the completion of reviews on foot at the time the
abolition comes into effect.
1.8
In addition, Labor Senators are also of the opinion that the requirement
for a Full Bench of the Fair Work Commission to be constituted to make, vary or
revoke a modern award is unnecessarily cumbersome. Given the government's
enthusiasm for reducing the burden on resources of the FWC and bargaining
parties, this provision should be amended so that only a single member is
required.
1.9
Regarding the provisions allowing the FWC to disregard minor technical
or procedural issues when approving enterprise agreements, Labor Senators agree
with Professor's Stewarts concern about the use of the term 'disadvantaged' in
subsection 118(2). As Professor Stewart details, this expression does not reflect
the intent of the procedural requirements, which is to ensure the enterprise
agreement is genuinely agreed to.
Recommendation 1
1.10
Labor Senators recommend that the Senate amend the Bill to address the
issues identified above.
Senator Gavin
Marshall
Deputy Chair
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