General comments: Process and timing
Senator Pocock notes the inadequate amount of time afforded to the committee to give due consideration to submissions and prepare for committee hearings. The Senate committee process provides an invaluable opportunity to scrutinise legislation in the best interest of the Australian community.
In this case, witnesses often did not have sufficient time to complete their submissions ahead of appearing before the committee, or submissions were circulated as witnesses arrived to give evidence.
This detracted from the value of the committee process.
The committee has had only ten days to consider 96 submissions, with six of those days taken up by Senate Estimates.
While the bulk of this bill introduces what are almost universally viewed as extremely welcome and long overdue reforms, a small number of provisions have caused deep concern across a wide variety of stakeholders.
For this reason, Senator Pocock maintains that those provisions of deepest concern should be split out and considered separately with adequate time to work through any unintended consequences, while also ensuring a mechanism to lift wages for all workers.
Senator Pocock again reiterates his support for measures to urgently lift wages with the current cost of living crisis, and notes in this context the desperate need for the Australian Government (government) to review and lift the rate of JobSeeker.
Part 1: Abolition of the Registered Organisations Commission (ROC)
The ROC exists as an independent regulator of unions and employer associations.
Senator Pocock acknowledges the government's election mandate to abolish the ROC, however he also notes feedback from employer groups that its work has been largely positive.
Senator Pocock has raised with the government the need to ensure the Fair Work Commission is properly resourced to absorb the functions of the ROC.
Senator Pocock also urges the committee to consider the recommendations detailed in the ROC's submission regarding Infringement Notices.
Part 2: Additional Registered Organisations enforcement options
Transfers regulatory/enforcement responsibilities from the Australian Building and Construction Commission and ROC to Fair Work Commission
Part 3: Abolition of the Australian Building and Construction Commission (ABCC)
Senator Pocock acknowledges the government's election mandate to abolish the ABCC, however he also notes concerns raised by a range of stakeholders, predominantly the peak employer organisations and notably Master Builders Australia as to the potential productivity impacts resulting from this provision. While welcoming additional resourcing allocated in the Budget, Senator Pocock further notes the views of these stakeholders who argue the Fair Work Ombudsman is 'not an effective replacement for the ABCC'.
Such sentiments have been echoed in correspondence Senator Pocock has received from a wide range of constituents including small local family builders.
Senator Pocock equally notes concerns raised by the CFMEU and other unions about what they felt was the ideological nature of the ABCC and that its powers discriminate against workers in the construction industry.
Senator Pocock welcomes this bill establishing a new National Construction Industry Forum as a positive and constructive tripartite step forward but notes that it will not have the same powers as the ABCC and the preferred option would be a model that saw a specialist regulatory division.
Parts 5–9: Objects of the Act, equal remuneration, expert panels, pay secrecy, sexual harassment, anti-discrimination and special measures
Senator Pocock strongly supports these parts, as does the vast majority of the evidence provided to the committee in hearings and submissions. They make important changes to Australia's Industrial Relations Framework that will help close the gender pay gap, improve gender equity, improve the Fair Work Commission's expertise, and better deal with sexual harassment and discrimination.
As ACOSS notes: 'We believe that these proposals offer an overdue updating of the legislation to more effectively improve gender equity in the workplace, noting again the central role government has in adequately investing in the sector and its workforce'.
Part 10: Fixed term contracts
Limits fixed terms contracts to 24 months
Senator Pocock welcomes the government's amendment moved in the House of Representatives to delay implementation of this part by 12 months, but notes this does not resolve a range of genuine concerns raised by stakeholders in the implementation of this provision.
While promoting security of employment is a worthy objective, this part of the bill may have a number of adverse unintended consequences on various sectors including in professional sports and university research.
As the AHEIA submission warns:
This Bill could inadvertently result in research being moved offshore or discontinued and/or casuals being engaged increasingly to perform research activities.
Part 11: Flexible work
Senator Pocock notes the many benefits flexible working provisions will bring to a range of workers. Senator Pocock also acknowledges concerns that some employers and employer organisations have raised around how this may operate in practice and the role of the Fair Work Commission in arbitrating not just the process but also the outcome.
Senator Pocock notes the two recommendations put forward by ACCI on this part and encourages the government to consider them on their merits as a sensible compromise.
Parts 12 to 14: Termination of enterprise agreements after expiry, sunsetting 'zombie' agreements, enterprise agreement approval
No additional substantive comments. Senator Pocock notes the majority of evidence provided to the committee is supportive of these parts and recognises the benefits these reforms will deliver to Australian workers.
Part 15: Initiating bargaining
Senator Pocock welcomes the amendment to introduce a so-called 'grace period' during which employers and employees can commence good faith bargaining for a single-enterprise agreement prior to becoming eligible to enter multi-enterprise bargaining. Senator Pocock notes submissions from some stakeholders seeking further extension to 12 months of this threshold.
Part 16: Better Off Overall Test (BOOT), Part 17: Errors in agreements, Part 18: Bargaining disputes; Part 19: Industrial action, Part 20: Supported bargaining
No additional substantive comments. Senator Pocock notes the majority of evidence provided to the committee is supportive of these parts and recognises the benefits these reforms will deliver to Australian workers.
Part 21: Single interest employer authorisations
Senator Pocock notes evidence from the Department of Employment and Workplace Relations confirming that drafting on single-interest multi-enterprise agreement provisions did not commence until after the Jobs and Skills Summit.
Senator Pocock further notes the Office of Best Practice Regulation's (OBPR) assessment that the Regulatory Impact Statement (RIS) on the Bill is 'adequate and therefore sufficient to inform a decision'.
However, it also states that:
To have been assessed as good practice under the Guide, the RIS would have been benefited from:
further analysis of the potential impacts on productivity, real wages and other distributional impacts, in particular on gender …
statements or evidence that the regulatory costs and their assumptions had been tested with stakeholders, or otherwise an acknowledgement why this had not been undertaken …
The overwhelming majority of evidence provided to the committee from a broad range of stakeholders expresses significant and wide-ranging concerns with the detail of the single interest multi-employer bargaining stream.
These are significant reforms with wide-ranging impacts. That's not a bad thing. Big reforms are needed to get a big increase in wages. But Senator Pocock shares the view of stakeholders that the size of the reforms increases the impetus to ensure they deliver as intended.
Senator Pocock notes concerns raised in multiple submissions around the definition and application of the common interest test.
National Disability Services says:
We are concerned that the broad definitions of common interest proposed which include the nature of enterprises, terms and conditions of employment, geographical location and common regulatory regimes, could see disparate employers with varied operating conditions, possibly across different sectors be pulled into a common agreement.
Manufacturing Australia warns that 'the bill, as drafted, will have the reverse effect and lead to the unintended consequence of undermining the status of enterprise level bargaining as the primary and preferred type of agreement making. Specifically, Manufacturing Australia does not support, in its current form, Part 21 of the Bill…' This is in the context of their members having 'a strong track record of successful bargaining at the enterprise level. This track record of successful enterprise bargaining has typically delivered:
wages growth over the decade to 2022 above consumer price index and wage price index.
high levels of full-time employment, with 84% of manufacturing employees employed on a full time basis (69% higher than the national average)'.
These are just a few of the examples of a wide range of concerns expressed that the truncated timeframe afforded to committee members to provide comment has meant Senator Pocock is unable to detail in greater length here.
Part 22: Varying agreements to remove workplaces, Part 23: Cooperative workplaces, Part 24: Enhancing small claims, Part 25: Prohibiting illegal pay rate advertisements
No additional substantive comments. Senator Pocock notes the majority of evidence provided to the committee is supportive and recognises the benefits these reforms will deliver to Australian workers.
Senator David Pocock
Participating Member
Independent Senator for the Australian Capital Territory