CHAPTER 1
Introduction and overview
Reference
1.1
On 1 November 2012, the Senate referred the provisions of the Fair Work
Amendment Bill 2012 (the bill) to the Senate Education, Employment and
Workplace Relations Legislation Committee (the committee) for inquiry and
report by 26 November 2012.
Conduct of inquiry
1.2
The committee advertised in The Australian on 7 November 2012,
calling for submissions by 13 November 2012. Details of the inquiry were also
made available on the committee's website.[1]
1.3
The committee also contacted a number of organisations inviting
submissions to the inquiry. Submissions were received from 34 individuals
and organisations, as detailed in Appendix 1.
1.4
A public hearing was held in Canberra on 21 November 2012. The witness
list for the hearing is at Appendix 2.
Background
1.5
The bill seeks to implement the first tranche of amendments to the Fair
Work Act (the Act) recommended by a review of the Act conducted between
December 2011 and June 2012, by an independent panel of three experts. The
panel made 53 recommendations aimed at improving the operation of the
legislation without compromising productivity and fairness in the workplace.
Overview of the bill
1.6
According to the Explanatory Memorandum (EM), apart from technical and
consequential amendments, the bill would make:
- amendments to clarify that opt-out terms cannot be included in
enterprise agreements, that enterprise agreements cannot be made with only one
employee and that a union official from one union cannot act as a bargaining
representative where that union does not have coverage;
- amendments to align the time limits for lodging unfair dismissal
claims and general protections claims involving dismissal at 21 days and to
provide new measures in relation to dismissing unfair dismissal applications
and costs orders in certain circumstances;
- amendments to clarify which union members are able to vote on and
participate in protected industrial action and the conduct of protected action
ballots, including allowing for electronic voting and requiring ballots to be
conducted expeditiously
- structural amendments to FWA including:
- changing the name to the Fair Work Commission (FWC), including
provision for the appointment of the General Manager on the nomination of the
FWC President;
- allowing stay orders to be made by Presidential Members;
- allowing for the appointment of acting Commissioners;
- creating two statutory positions of Vice President;
- establishing a process to deal with complaints against FWC
members and streamlining provisions dealing with conflicts of interest of
members; and
- other minor amendments to improve the conduct of matters before
the FWC.
1.7
The bill would also amend the Act to give effect to the Government’s
response to the Productivity Commission’s Report into Default
Superannuation Funds in Modern Awards (Report No. 60). The bill would
specifically:
- introduce new requirements in relation to modern award terms
about default superannuation, and a process under which the FWC would review default
fund terms every 4 years (at the same time as the 4 yearly review of modern
awards); and
- provide for the establishment of the Expert Panel, which will
subsume the functions of the Minimum Wage Panel (MWP) and will include members
with relevant expertise to allow them to be appointed to the Expert Panel
assessing default superannuation funds or to the Expert Panel responsible for
the annual minimum wage review.
Compatibility with human rights
1.8
The provisions in the bill engage a number of rights, including the
right to just and favourable conditions of work, the right to freedom of
association, the right to privacy and reputation, and the right to a fair
hearing. The Explanatory Memorandum states that the bill is compatible with
human rights and freedoms.[2]
The Parliamentary Joint Committee on Human Rights has not yet reported on its
consideration of the bill.[3]
Matters identified by the Senate Scrutiny of Bills Committee
1.9
The committee notes that the Senate Standing Committee for the Scrutiny
of Bills wrote to the Minister for Employment and Workplace Relations, the Hon.
Bill Shorten MP, regarding certain aspects of the bill. These specifically
relate to the possible inappropriate delegation of power and possible undue
trespass on personal rights and liberties.[4]
The Minister's response is unlikely to be received before the tabling of this
report. The committee considers that the matters raised by the Scrutiny of
Bills Committee should be satisfactorily resolved before the bill proceeds.
Acknowledgment
1.10
The committee thanks those individuals and organisations who contributed
to the inquiry by preparing written submissions and giving evidence at the
hearing.
Notes on references
1.11
References in this report to the Hansard for the public hearing
are to the Proof Hansard. Please note that page numbers may vary between
the proof and the official transcripts.
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