Bills Digest No. 54, 2012–13

26 November 2012

Fair Work Amendment Bill 2012

Anne Holmes
Economics Section 

Date introduced: 30 October 2012

House: House of Representatives

Portfolio: Education, Employment and Workplace Relations

Commencement: Various dates as set out in Clause 2 of the Bill

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the Fair Work Amendment Bill 2012 (the Bill) is to amend the Fair Work Act 2009 (the Fair Work Act) to make technical and clarifying amendments to the Fair Work Act in order to implement the Government’s first tranche response to the report – Towards more productive and equitable workplaces: an evaluation of the Fair Work legislation.

The Bill also includes additional amendments in relation to the operation of Fair Work Australia and to the process of selecting superannuation funds as default funds in modern awards. The superannuation amendments represent the Government’s response to the Productivity Commission’s 2012 report on Default Superannuation Funds in Modern Awards.

Structure of the Bill

There are 11 Schedules to the Bill:

·         Schedule 1 deals with new requirements for terms in modern awards about default superannuation funds, including how the funds are to be selected and how these terms are to be reviewed and varied

·         Schedule 2 deals with the creation of an Expert Panel. It replaces the Minimum Wage Panel and expands it to deal with selection of the superannuation funds which are to be default superannuation funds in modern awards

·         Schedules 3 to 7 are technical changes, many of them minor, to the operation of the Fair Work Act

·         Schedule 8 deals with changes to the powers of the President and Presidential Members of the Fair Work Commission, and the creation of two new positions of Vice President of the Commission. The Schedule also establishes a framework for handling complaints about Commission members. Schedule 9 changes the name of Fair Work Australia to the Fair Work Commission and makes various consequential and other amendments and sets out transitional arrangements

·         Schedule 10 clarifies when costs orders can be made under the Fair Work Act and

·         Schedule 11 deals with application, transitional and savings provisions.

Background

Review of the Fair Work Act

When it introduced the Fair Work Act in 2008, the Government undertook to conduct a post‑implementation review within two years of its full implementation on 1 January 2010.[1] The final report of that review was released on 2 August 2012.[2]

The Review made 53 recommendations. This Bill implements about one-third of them, those that are generally accepted and not contentious.[3]

Default superannuation funds in modern awards

Most modern awards[4] specify a particular fund or funds (‘default funds’) to which employers are required to make compulsory superannuation contributions for the benefit of employees to whom the modern award applies and who have not chosen a fund. In January 2012 the Government asked the Productivity Commission to undertake an inquiry into default superannuation funds in modern awards. It was to design transparent and objective criteria for the selection and ongoing assessment of superannuation funds eligible for nomination as default funds in modern awards. The Productivity Commission’s report was released on 12 October 2012.[5] The amendments in the Bill dealing with default superannuation funds give effect to the Government’s response to the report.[6]

This year the Government, largely in response to the Cooper Review[7], has introduced a series of Stronger Super reforms. A key aspect of these reforms has been the introduction of MySuper products. These have a simple set of product features, so that Members can more easily compare funds. Superannuation funds will begin to market MySuper products from 1 July 2013.

The Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012, which was introduced on 19 September 2012 and is still before the Parliament, makes provision for consumer protection in superannuation. In particular, it makes provision for default funds specified in awards to be a MySuper product or a defined benefit fund or a public sector scheme.[8] The Fair Work Amendment Bill replaces those provisions.

Passage of the Bill

The Bill is notable for its speedy passage so far through the Parliament. It was introduced into the House of Representatives on 30 October 2012 and debate on it commenced less than 24 hours later. It was passed by the House on 1 November and transferred to the Senate on that day.

Committee consideration

The Bill has been referred to the Senate Standing Committee on Education, Employment and Workplace Relations for inquiry and report by 26 November 2012. Details of the inquiry are at the inquiry web page.[9]

The Senate Committee for the Scrutiny of Bills (Scrutiny Committee) commented on the Bill in its Alert Digest of 21 November 2012.[10] The Committee discussed proposed subsections 401(1) and 401(1A), which provide for costs orders against lawyers and paid agents who have caused costs to be incurred by encouraging a party to bring or continue unfair dismissal claims that have no reasonable prospect of success or because the representative has otherwise acted unreasonably. The Scrutiny Committee noted the objective of these provisions (that is, ‘minimising unreasonable claims and actions’[11]), but also recognised the danger that the proposed provisions ‘may have a ‘chilling effect’ on the willingness or vigour with which lawyers and representatives may represent a party in unfair dismissal matters’, such as to constitute a trespass on the right to a fair hearing.[12] Taking both considerations into account, the Scrutiny Committee left the question of whether the proposed limitation is appropriate to the consideration of the Senate as a whole.[13]

The Committee also discussed proposed subsection 581A(3), which provides that the President may authorise a person or a body to undertake a number of functions in relation to handling a complaint against an FWC Member. The Committee noted that the practical effect of the proposed provisions ‘appear[s] to enable the function of handling complaints to be delegated to such persons or bodies’.[14] Given the wide power that may therefore be exercised by such an authorised person or body, the Committee was concerned that the Bill ‘does not provide any guidance as to the qualifications of persons or bodies that may be appropriate to exercise these functions nor does it provide for any institutional protections that may be considered to ensure or protect the independence of such decision-makers’.[15] The Committee has sought the Minister’s advice on this issue and, pending that reply, ‘draws Senators’ attention to the provisions, as they may be considered to delegate legislative powers inappropriately’.[16]

The Committee also raised a concern about proposed section 581B, which provides for the President to determine a Code of Conduct for FWC Members, The Bill provides, at proposed subsection 581B(4), that such a Code of Conduct is not a legislative instrument. The Committee noted that the Explanatory Memorandum to the Bill states that this subsection ‘is intended to be declaratory of the law’. However, the Committee notes that the Legislative Instruments Act 2003 defines a ‘legislative instrument’ as an instrument of a ‘legislative character’ made in the exercise of a power delegated by Parliament. An instrument is taken to be of ‘legislative character’ if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.[17]

Based on this definition, and the apparent intention that any complaint handler would at least consider any Code in determining a complaint, the Scrutiny Committee considered that it was not self-evident that any Code would not be a legislative instrument. Accordingly, the Committee sought the Minister’s advice ‘as to why the express declaration that the Code is not a legislative instrument should be considered to be declaratory of the law’.[18] That is, as there is room for argument about whether the Code is a legislative instrument, the inclusion of a provision that proclaims that it is not one, may be considered to be making a judgment on this issue, rather than just stating a settled legal position.

Finally, the Committee sought the Minister’s advice on whether the application of the amendments to section 160 in item 1 of Schedule 3 of the Bill (which broaden the requirements for bringing an application to have a modern award varied to remove an ambiguity, uncertainty or to correct an error) to applications and determinations prior to commencement ‘will have any detrimental effect on any person whose interests might be affected by such applications and determinations.’[19]

Policy position of non-government parties/independents

The Opposition expressed scepticism about the Review of the Fair Work Act early in its deliberations[20] and when it reported[21] on the basis that the Review panel and the terms of reference were biased. Its main criticism is that the Review did not address many questions that should have been addressed; it does not disagree with most of the amendments to the Fair Work Act proposed in this Bill.

The Opposition has also suggested that the Productivity Commission’s findings on the selection of default superannuation funds had been unduly influenced by public statements by the Minister.[22] It has argued that the inquiry and this Bill miss the opportunity which was offered by the introduction of MySuper products to enhance competition in the superannuation sector.[23]

The Opposition and the Australian Greens[24] in general supported the Bill in the House of Representatives with the reservation that the speed of its introduction and debate had made it impossible to review it properly. They disagreed with particular measures and foreshadowed further debate in the Senate.

Major interest groups

Perhaps in part owing to the speed with which the Bill was brought on for debate, there has been relatively little media coverage. The Australian Industry Group (AiG) initially criticised the Bill as failing to tackle the important issues, but urged that it be passed.[25]

Submissions to the Senate Committee Review have been more analytical, especially of the superannuation measures.[26] Many have been very critical. They are discussed in more detail below in the section on Key issues and provisions.

Financial implications

According to the Explanatory Memorandum, the Bill has no financial implications.[27] This was contested by Mr Jamie Briggs in his speech on the Bill in the House of Representatives: he calculated that the cost of creating two new positions of Vice President on the Fair Work Commission would be $8 million over the forward estimates.[28]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[29]

At the time of writing this Bills Digest the Parliamentary Joint Committee on Human Rights had not reported on the Bill.

Key issues and provisions

At the outset it is useful to note that Schedule 9 of the Bill proposes to change the name of Fair Work Australia to the Fair Work Commission. In anticipation of this change, the Bill, the Explanatory Memorandum and therefore this Bills Digest use the proposed title Fair Work Commission (FWC) rather than the existing title Fair Work Australia.

Schedule 1—Default superannuation

Items 1 to 9 of Schedule 1 of the Bill insert proposed new definitions into the Fair Work Act relevant to the amendments in this Schedule. The most important are:

·         tailored MySuper product, essentially a large employer fund as defined in proposed section 29TB of the Superannuation Industry (Supervision) Act 1993[30]

·         corporate MySuper product, a MySuper product which is an employer-sponsored fund which is not a public offer fund and has only one sponsor, or where there are two or more sponsors they are associates of each other and

·         generic MySuper product, a MySuper product which is not a tailored MySuper product nor a corporate MySuper product.

Item 12 of Schedule 1 repeals section 149A of the Fair Work Act, which deals with superannuation in modern awards.[31] Item 13 inserts proposed sections 149B, 149C and 149D into Division 3 of Part 2‑3 of the Fair Work Act.

The new section 149B requires that a modern award include a term that requires an employer to make superannuation contributions on behalf of an employee so as to avoid liability to pay the superannuation guarantee charge. This means that the employee has an entitlement under the award which matches the existing requirements on the employer.

New section 149C requires that awards include a default fund term which would require an employer to make contributions to a fund that complies with proposed section 149D, unless the employee has chosen another fund. New section 149D requires that the default fund in a modern award be a generic MySuper product, a defined benefit scheme, an exempt public sector scheme, a state public sector scheme, or one that is transitionally authorised under proposed section 156K.

This means that corporate MySuper products and tailored MySuper products are excluded from being named as default funds in awards.

The Productivity Commission also concluded that employer specific funds should not be included as default funds. It proposed that they should have to be approved, and then the modern award should specify that employers could pay into such funds.[32]

The approach taken in proposed section 149D has caused some controversy, as companies have developed these products to comply with the MySuper requirements in the expectation that they will be eligible to be default funds.[33]

The Government has responded to this concern by pointing out that employees can still choose to have their superannuation paid into whatever fund they wish, and that corporate and tailored MySuper products can be specified as default funds in enterprise agreements.[34]

While arguments that any MySuper fund should be eligible for inclusion as a default fund in an award are superficially plausible, it is hard to see how a fund that is not open to all those covered by an award can be so included. Further, most employers large enough to offer a separate superannuation scheme will have an enterprise agreement – though there will be exceptions.

Item 14 repeals section 155A, which sets out terms dealing with superannuation.[35]

Item 18 of Schedule 1 inserts a new Division 4A—4 yearly reviews of default terms in modern awards — Part 2-3 of the Fair Work Act. Proposed Subdivision A says that there will be four yearly reviews, starting as soon as practicable after each fourth anniversary of Part 2-3 – that is, after
1 January 2014. These are to be separate from the general reviews of awards (proposed paragraph 156(2)(c), item 15). There will be two stages to the Review: the making of the Default Superannuation List by the FWC, which will consist of Members of the Expert Panel[36] for this purpose; and the Review, and if necessary varying, of the default fund terms of each modern award by a Full Bench of the FWC (proposed section 156A)

Proposed Subdivision B sets out the first stage of the Review. Superannuation funds will be invited to apply to have a MySuper product included on the list; then there will be an opportunity for persons or bodies to make written submissions on those applications. The applications will be assessed according to criteria set out in proposed section 156F. These are broadly in line with the criteria recommended by the Productivity Commission.[37] The overriding concern is that including a product on the list would be in the best interest of employees (proposed section 156E).

Proposed Subdivision C sets out the second stage of the Review. The FWC will provide an opportunity for employers and employees covered by the modern award, and organisations entitled to represent them, to make written submissions (proposed section 156G). Proposed section 156H provides that the FWC will then remove the existing default funds from the award and specify at least two and no more than 10 default funds from the list to be included in the award. This is at variance with the Productivity Commission, which recommended no specific limit on the number of default funds.[38] However, there is provision to include more than 10 default funds if it is warranted (proposed subsection 156H(3)).

Item 20 inserts proposed section 159A which sets out when a default fund term may be varied.

Schedule 2—Expert Panel

Schedule 2 of the Bill creates the Expert Panel. It essentially replaces and expands the former Minimum Wage Panel. Item 18 provides for the proposed panel to have six Members, rather than the three to six Members of the Minimum Wage Panel. Items 21, 30, 33, and 39 provide for Expert Panel Members to conduct stage one of the default fund reviews.[39]

Item 43 amends subsection 620(1) to set out the specific expertise (in the fields of workplace relations, economics, social policy, or business, industry or commerce) required of at least three Members of the Expert Panel when it is conducting Minimum Wage Reviews. It adds proposed subsection 620(1A), which sets out the requirements for three Members of the Expert Panel when it is determining the Default Superannuation List (in which case, the Panel members are to have knowledge or experience in finance, investment management, or superannuation). The Expert Panel Chair must be either the President, or alternatively a Vice President or Deputy President appointed by the President.

The other items in Schedule 2 are technical changes.

Schedule 3—Modern awards

Part 2-3 of the Fair Work Act deals with modern awards, which provide a safety net of minimum terms and conditions of employment across industries and occupations. Schedule 3 of the Bill makes amendments to Part 2-3 which contain minor technical changes to do with applications to the FWC to vary modern awards.

Schedule 4—Enterprise agreements

Part 2-4 of the Fair Work Act provides a framework for the making of enterprise agreements through a process of collective bargaining in good faith. Schedule 4 of the Bill amends Part 2-4.

Item 1 of Schedule 4 adds a proposed subsection 172(6), to require that an enterprise agreement cannot be made with a single employee, while item 4 inserts proposed paragraph 194(ba) which prohibits any term that allows an employer or an employee to choose not to be covered by an agreement. Both amendments are aimed at strengthening collective bargaining.[40]

Master Electricians Australia, which represents a large number of small businesses, has pointed out that many of its Members want to have capacity to enter into agreements with a single employee, because they only have one employee.[41] The Australian Chamber of Commerce and Industry also believes it should be possible to have a single employee agreement, noting that an employee so covered would be protected by the Better Off Overall Test.[42] More generally, the Business Council of Australia believes it should be possible to opt out of an agreement.[43]

Item 2 of Schedule 4 repeals and replaces subsection 176(3) with the effect that an official of an employee organisation cannot be a bargaining representative of the employee unless their organisation has coverage in relation to the work being performed. The current restriction in subsection 176(3) applies to the employee organisation only, and not to an individual official.

Item 6 of Schedule 4 relates to FWC orders to do with who is to be covered by an
agreement – scope orders. Where currently a bargaining representative seeking a scope order, is required to give written notice to the other bargaining representatives of its concerns, under proposed paragraph 238(3)(a) it will be required to take all reasonable steps to give a written notice.

Schedule 5—General protections

Schedule 5 of the Bill makes two amendments to Part 3-1 of the Fair Work Act. Part 3-1, dealing with general protections, prohibits adverse action against a person because that person has a workplace right, is a member or officer of an industrial association or engages in industrial activity, or because of a person’s particular attributes (such as race, sex).

Item 1 of Schedule 5 proposes to reduce the time limit for making claims involving dismissal under the general protections provisions in Part 3-1 from 60 days to 21 days. There has been some debate about whether this is sufficient time and the matter is further addressed in the section below on Schedule 6.

Item 2 of Schedule 5 proposes to make it explicit that the protections in Part 3-1 applies to employers as well as employees.

Schedule 6—Unfair dismissal

Part 3-2 of the Fair Work Act provides remedies for employees who are unfairly dismissed. Schedule 6 of the Bill amends certain aspects of procedures for dealing with unfair dismissal applications.

Item 1 of Schedule 6 extends the time allowed for making a claim of unfair dismissal under Part 3-2 from 14 days to 21 days. The Bill thus proposes to align the time available under the general protections provisions (see Schedule 5 above) and the unfair dismissal provisions. Among other advantages, this would prevent the lodgement of a general protections claim if an unfair dismissal claim were rejected.[44]

Some employee representatives and advocates have argued that this timeframe is too short for both types of claim.[45] However, the Australian Council of Trade Unions has accepted that it is appropriate.[46]

Items 2, 4 and 9 of Schedule 6 of the Bill are intended to improve the operation of the unfair dismissal processes.

Proposed section 399A (item 2) would enable the FWC to dismiss an unfair dismissal application if the applicant has unreasonably failed to attend a conference or hearing or to comply with a direction or order to do with the application. Proposed section 400A (item 4) enables the FWC to order costs against a party in an unfair dismissal matter where that party has unreasonably caused the other party to incur costs. Proposed subsection 401(1A) (item 9) allows for costs orders against a lawyer or paid representative who encourages a person to start, continue or respond to an unfair dismissal action where they should have known there was no reasonable prospect of success.

In each case the intention is to retain the general character of the FWC as a no-costs jurisdiction, but to discourage unreasonable behaviour. There has been a good deal of comment that the possibility of costs will encourage lawyers to settle early and not in the best interests of their client.[47] However, the alternative logic, that without a disincentive they will be encouraged to persist, holds equally; and the possibility for costs against agents of employers who respond to an action inappropriately should assist employees with genuine claims.

Schedule 7—Industrial action

Part 3-3 of the Fair Work Act permits employees and employers to engage in protected industrial action in support of claims for an enterprise agreement, provided that a number of procedural and other requirements are satisfied. One of these requirements is that the particular protected industrial action to be undertaken must be authorised by a protected action ballot of employees who are members of an employee organisation and who will take the relevant action.[48]

Schedule 7 of the Bill amends Part 3-3 of the Fair Work Act to provide for electronic ballots on protected industrial action, to require that ballots be conducted ‘expeditiously’, and to clarify some representational rights.

Schedule 8—The Fair Work Commission

Schedule 8 of the Bill deals with Part 5-1 of the Fair Work Act, which is about the operation of the FWC.

Part 2 of Schedule 8 deals with conflicts of interest involving FWC Members. Item 2 requires that a potential conflict for a member must be disclosed not only to the President, as is currently the case, but also to persons involved (or likely to be involved) in a matter. Item 5 repeals paragraph 643(c), with the effect of removing the requirement for dismissal of an FWC member who does not disclose a conflict.

Part 3 of Schedule 8 deals with referral of matters to a Full Bench of the FWC. Proposed section 615A (item 7) will require the President to refer a matter if an interested party, or the Minister, requests it and it is in the public interest to do so. Proposed new section 615C (item 7) will enable the President to decide to perform a function or exercise a power himself or herself, even after it has been allocated to a member of the FWC or a Full Bench.

The Law Council of Australia regards it as inappropriate that the President should have the power to take over a matter that has been allocated to a Full Bench as it could be interpreted as ‘an attack on the independence and/or competence of the Full Bench’.[49]

Part 5 of Schedule 8 gives the President the power to nominate the General Manager of the FWC, who will, as now, be appointed by the Governor-General.

Part 6 of Schedule 8 provides for the creation of two new positions of Vice President of the FWC. The occupants of these positions would rank as senior to the existing Deputy Presidents (including those who are still entitled to be referred to as ‘Vice Presidents’ because they were appointed under the old Workplace Relations Act). Several parties have said that it is not clear that the appointments are necessary.[50]

The Law Council of Australia argues that the new appointments and the seniority arrangements would reduce the independence of the FWC as it reduces the role, status and privileges associated with particular individuals. It notes that the issue would not arise if the incumbents were appointed to the new positions, but that this cannot be guaranteed as applications are required.[51] The Australian Chamber of Commerce and Industry had similar concerns, and concluded that in fact the incumbents should automatically be appointed to the new positions.[52]

Part 7 of Schedule 8 inserts a new section 581A which gives the President of the FWC the power to deal with a complaint about the performance by another FWC Member of his or her duties. It enables the President to take measures to maintain public confidence in the FWC, including restricting the member’s duties. If the complaint is found to be justified, and if the President thinks it warranted, he or she must refer the complaint to the Minister; the Minister must then decide whether each House of Parliament should consider termination of the appointment of the FWC member (proposed section 641A, item 65 of Schedule 8).

The Law Council of Australia does not support this amendment. While it believes that a complaints handling process is necessary, it has concerns that the proposal will create the impression that Members are subservient to the President when hearing and determining matters. It considers that the amendment as it is drafted could include a complaint about a decision, and does not make a clear enough distinction between grounds for appeal and other matters that might warrant a complaint about conduct.[53]

Under proposed section 581B (item 62 of Schedule 8) the President can determine a code of conduct for FWC Members, after consulting those Members.

Schedule 9—Changing the name of Fair Work Australia

Schedule 9 of the Bill would amend the Fair Work Act to change the name of ‘Fair Work Australia’ to the ‘Fair Work Commission’ and make consequential amendments to the Fair Work Act and other Commonwealth legislation to reflect this change. Items 1386–1389 of Schedule 9 provide for transitional arrangements.

Schedule 10—Other amendments

Section 570 of the Fair Work Act provides for courts exercising jurisdiction under the Fair Work Act to award costs against a party to proceedings (including appeals) only where the court is satisfied the proceedings have been instituted vexatiously or without reasonable cause. Item 1 of Schedule 10 of the Bill amends subsection 570(1) and broadens its scope so that it operates in relation to matters arising under the Fair Work Act, rather than in relation to courts exercising jurisdiction under the Act. This amendment is a response to a decision in an earlier case involving the Federal Court. The circumstances are set out in the Explanatory Memorandum (page 56). The intention is to confirm that the Fair Work Act is generally a ‘no costs’ jurisdiction.

Schedule 11—Application, transitional and saving provisions

The provisions in Schedule 11 of the Bill are technical in nature and described in the Explanatory Memorandum on pages 57–59.

Concluding comments

Most of the provisions of the Bill are unexceptionable. The most controversial aspects are to do with default superannuation funds in modern awards. It appears that they can work successfully.

There have also been questions about the motivation for and impact of the two new Vice President positions. The Government’s only rationale for the new positions is that they will assist in attracting senior practitioners to the Commission.[54] There does not appear to be specific evidence that this is necessary.

There are further concerns about the impact of the Bill on the independence of members of the FWC, These have been raised in particular by the Law Council, and are discussed above (p 13). First, for the President to have the power to take over a matter that has been allocated to a Full Bench could be interpreted as an attack on the independence and/or competence of the Full Bench. Second, the new Vice President roles and seniority arrangements could be considered to reduce the independence of the FWC, by reducing the role, status and privileges associated with the existing Deputy Presidents. Third, there is a concern that the proposed complaints handling provisions may mean that members of the FWC may not be, or may not be seen to be, independent of the President when exercising their functions, as those provisions do not make a clear enough distinction between grounds for appeal of decisions and grounds for other kinds of complaints against Members.

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ISSN 1328-8091

[1].              Explanatory Memorandum, Fair Work Bill 2008, p. iv, viewed 22 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4016_ems_ff7018e2-9c31-450c-9174-e9b37d665484%22

[2].              Department of Education, Employment and Workplace Relations (DEEWR), Towards more productive and equitable workplaces: an evaluation of the Fair Work legislation (Fair Work Act Review), DEEWR website, Canberra, 15 June 2012, viewed 9 November 2012, http://www.deewr.gov.au/WorkplaceRelations/Policies/FairWorkActReview/Pages/Home.aspx

[3].              Explanatory Memorandum, Fair Work Amendment Bill 2012, p.1, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4924_ems_680d5a96-fada-4ea1-bb52-496d09251017%22; Australian Council of Trade Unions (ACTU), Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, 13 November 2012, and Australian Industry Group (AiG), Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, November 2012, viewed 16 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/fair_work_2012/submissions.htm

[4].              Modern awards are dealt with in Part 2-3 of the Fair Work Act. They provide a safety net of minimum terms and conditions of employment across industries and occupations.

[5].              Productivity Commission (PC), Default superannuation funds in modern awards, Inquiry report no. 60, Commonwealth of Australia, 5 October 2012, viewed 16 November 2012, http://www.pc.gov.au/projects/inquiry/default-super/report

[6].              Explanatory Memorandum, Fair Work Amendment Bill 2012, op. cit., p. 2.

[7].              Australian Government, Super system review, webpage, 30 June 2010, viewed 19 November 2012, http://www.supersystemreview.gov.au/

[8].              The Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012
bill homepage can be viewed at: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4902%22

[9].              Senate Standing Committee on Education, Employment and Workplace Relations, Inquiry into the Fair Work Amendment Bill 2012, Senate, Canberra, November 2012, viewed 22 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/fair_work_2012/index.htm

[10].              Senate Committee for the Scrutiny of Bills, Alert Digest No 14, 21 November 2012, viewed 26 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=scrutiny/alerts/2012/index.htm

[11].              Ibid., p. 9.

[12].              Ibid.

[13].              Ibid.

[14].              Ibid.

[15].              Ibid.

[16].              Ibid., p. 10.

[17].              Section 5 of the Legislative Instruments Act 2003, available at: http://www.comlaw.gov.au/Details/C2012C00709

[18].              Senate Committee for the Scrutiny of Bills, op. cit., p. 11.

[19].              Ibid.

[20].              E Abetz (Shadow Minister for Employment and Workplace Relations–TAS), Doorstop Senate entrance, transcript, 9 February 2012, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1407622%22

[21].              E Abetz (Shadow Minister for Employment and Workplace Relations–TAS), $Million Bill’s Fair Work review, media release, 2 August 2012, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1822484%22

[22].              M Cormann, Shorten intervention kills off default super competition, media release, 12 October 2012, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressrel%2F1979690%22

[23].              Ibid., P Fletcher, ‘Second reading speech: Fair Work Amendment Bill 2012’, House of Representatives, Debates, 31 October 2012, p. 12 781, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F466695ee-0c7f-4e03-8a6d-246f5f265306%2F0074%22

[24].              A Bandt, ‘Second reading speech: Fair Work Amendment Bill 2012’, House of Representatives, Debates, 31 October 2012, p. 12 791, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F466695ee-0c7f-4e03-8a6d-246f5f265306%2F0077%22

[25].              Australian Industry Group (AiG), Fair Work Act first tranche is useful, but does not touch the sides on the most important issues, media release, 15 October 2012, viewed 19 November 2012, http://www.aigroup.com.au/portal/site/aig/template.MAXIMIZE/mediacentre/releases/?javax.portlet.tpst=576c3f2a4adc0f512aec2f100141a0a0_ws_MX&javax.portlet.prp_576c3f2a4adc0f512aec2f100141a0a0=index%3D22%26docName%3DFair%2BWork%2BAct%2BFirst%2BTranche%2Bis%2BUseful%252C%2Bbut%2Bdoes%2Bnot%2BTouch%2Bthe%2BSides%2Bon%2Bthe%2BMost%2BImportant%2BIssues%26folderPath%3D%252FLIVE_CONTENT%252FMedia%2BReleases%252F2012%252FOctober%252F%26viewID%3Dcontent&javax.portlet.begCacheTok=com.vignette.cachetoken&javax.portlet.endCacheTok=com.vignette.cachetoken

[26].              The submissions can be accessed at Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, November 2012, viewed 22 November 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=eet_ctte/fair_work_2012/submissions.htm

[27].              Explanatory Memorandum, op. cit., p. 11.

[28].              J Briggs, ‘Second reading speech: Fair Work Amendment Bill 2012’, House of Representatives, Debates, 31 October 2012, p. 12 787, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F466695ee-0c7f-4e03-8a6d-246f5f265306%2F0076%22

[29].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. There is discussion of various human rights aspects of the Bill at pp. 3–10.

[30].              The Superannuation Legislation Amendment (MySuper Core Provisions) Bill 2012 to amend the Superannuation Industry (Supervision) Act 1993, including by inserting new section 29TB into that Act is currently before the Parliament; see the homepage, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4708%22

[31].              The Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012, which is currently before the Parliament, would insert new section 149A into the Fair Work Act; see the homepage, viewed 19 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbillhome%2Fr4902%22  

[32].              Productivity Commission, op. cit., p. 26.

[33].              See for example submissions by the Financial Services Council and Qantas to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[34].              Department of Education, Employment and Workplace Relations, Submission to the Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[35].              The Superannuation Legislation Amendment (Further MySuper and Transparency Measures) Bill 2012, which is currently before the Parliament, would insert a new section 155A into the Fair Work Act; see the homepage, op. cit.

[36].              The Expert Panel is described below under the heading Schedule 2—Expert Panel.

[37].              Productivity Commission, op. cit., p. 21.

[38].              Ibid., p. 25.

[39].              Described above under the heading Schedule 1—Default superannuation.

[40].              Explanatory Memorandum, p. 6.

[41].              Master Electricians Australia, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[42].              Australian Chamber of Commerce and Industry, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[43].              Business Council of Australia, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[44].              Fair Work Act Review, op. cit., p. 244.

[45].              For example, the Employment Law Centre of WA (Inc.), Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[46].              Australian Council of Trade Unions, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[47].              For example, Redfern Legal Centre, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[48].              Explanatory Memorandum, p. 40.

[49].              Law Council of Australia, Submission to Senate Education, Employment and Workplace Relations Committee, Inquiry into the Fair Work Amendment Bill 2012, op. cit.

[50].              For example, Business Council of Australia, op. cit.; Australian Chamber of Commerce and Industry, op. cit.

[51].              Law Council of Australia, op. cit.

[52].              Australian Chamber of Commerce and Industry, op. cit., p. 38.

[53].              Law Council of Australia, op. cit.

[54].              B Shorten, ‘Second reading speech: Fair Work Amendment Bill 2012’, House of Representatives, Debates, 30 October 2012, p. 12 577, viewed 20 November 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2Ff3460e8f-bde4-4fc5-8d67-52fdc5190016%2F0127%22