Coalition Senators' Dissenting Report

1.1The Coalition acknowledges the significant challenge that communities will face in the transition to a net zero economy.

1.2History shows that a transformation driven by local communities provides the most effective result where that transformation is actively supported by all levels of government with appropriate supports and economic conditions conducive to new investment and employment creation.

1.3Contrary to the successful approach noted above, the government through this approach applies a top down application.

1.4The investment facilitation aspects of the proposed Authority duplicate the role of existing funding agencies such as the Clean Energy Finance Corporation (CEFC), the Australian Renewable Energy Agency (ARENA), and the role of existing mechanisms such as the Major Project Facilitation Agency. This approach, focused on facilitating investment consistent with net zero ambitions, also leans into the Government’s preference for “picking winners”, rather than genuine investment facilitation and jobs creation.

1.5A national agency to assist regions is also duplicative of state-based mechanisms designed to achieve the same outcome. For example, regional planning initiatives through the NSW Government‘s Hunter Regional Plan and the Victorian Government’s Latrobe Valley Authority Transition Plan. This new authority would also cut across the work and vision of existing Regional Development Australia Committees, which recognise that there is no one-size-fits-all approach to creating vibrant regions. A national body risks a top-down, Canberra-centric approach which does not fully consider regional needs and priorities.

1.6The interventionist approach continues with the industrial relations components of the legislation.

1.7Whilst most governments focus on providing incentives to employers to find new employment for displaced employees to find new job opportunities, this legislation focuses instead on giving a central planning power to the new agency to determine what is best for communities, businesses and individual employees.

1.8Australia’s current industrial framework features a well-established safety net that applies and has applied for a considerable amount of time to instances of business closure and industry change.

1.9This bill adds an additional layer of regulation not previously considered by the Fair Work system.

1.10The proposed Plan process overlaps significantly with existing industrial obligations (including consultation, paid leave, union access and enforcement) without dealing with how those overlapping obligations should interact. This bill takes no steps to harmonise measures which will cause confusion, uncertainty and disputation at a workplace level that can be avoided.

1.11There are justifiable benefits in mechanisms that attempt to keep jobs and employment in these affected communities. The concept itself is not the problem in terms of making relevant employers be involved in ensuring an adequate transition of employees and re-training where required, it is the process of forcing businesses in the supply chain, including those unimpacted by them into the Fair Work Commission (FWC), and the uncertainty that will be present in terms of what the FWC can decide is the appropriate cause, plus the ability of a union to be able to bring a dispute in terms of what they deem is inadequate.

1.12There is no sense of limit around what obligations, pay or conditions that can be applied as much will be left to the FWC to determine.

1.13There are genuine concerns that this legislation will be used as a mechanism to ratchet up existing provisions in awards and enterprise agreements over and above existing industry norms for similar circumstances.

1.14It is important to note that the larger risk in this legislation is not for the large energy generation companies (like AGL, Origin or EA), but rather for smaller businesses who supply goods or services to a closing power station may be caught up in this Energy Industry Jobs Plan process. These businesses, who typically don’t have HR and internal workplace lawyers, are unlikely to have any line of sight as to what is coming.

1.15There is concern about the scope of the legislation, particularly for smaller “dependent employers” – note the example given in the Explanatory Memorandum of a dependent employer is a local cleaning service with a commercial relationship with a closing generator. It is not clear what liability or obligations a cleaning service would be expected to adopt under an Energy Industry Jobs Plan. It would be up to the FWC to determine.

1.16There are no carve outs or exclusions for small businesses in the legislation. These organisations are unlikely to have the resources or capacity to administer the services outlined in the bill.

1.17Departmental officials were unable to provide details or clarity as to how smaller employers might interact with the legislation or what measures they should be taking now to make themselves familiar with provision, other than to advise that they would be advised by the authority if they were included in arrangements and could appeal to the CEO.

1.18Employers universally expressed concern regarding the uncertainties, duplications and lack of alignment with the Fair Work Act created by this legislation and sought amendment to clarify, remove duplications and misalignments.

1.19Utilisation of the existing provisions of the Fair Work Act would be far preferable to creating these new confusing provisions which are little more than a back door to ratcheting existing Fair Work negotiated award and enterprise agreement provisions.

1.20All of the activities of the authority can be undertaken by a properly functioning government without the need for legislation utilising existing mechanisms without creating the duplication, uncertainty and lack of alignment with existing legislation created by this bill.

1.21The Coalition recommends this legislation not pass.

Senator the Hon Richard Colbeck

Deputy Chair

Liberal Senator for Tasmania