Amanda Rishworth
I present a supplementary explanatory memorandum to the bill, and I move the government amendment as circulated:
(1) Schedule 1, item 1, page 3 (after line 18), at the end of section 135A, add:
(3) Nothing in subsection (1) requires the FWC to exercise its powers under this Part to make, vary or revoke modern awards.
The amendment introduces new subsection (3) to proposed section 135A, putting it beyond doubt that the changes introduced by this bill do not require or compel the Fair Work Commission to undertake a review of all modern awards to see whether the new principle applies or not; review award terms outside the scope of an application before the commission; or exercise its powers to make, vary or revoke a modern award. It was never the intent of the bill to compel the commission to undertake a review of all modern awards or to review penalty and overtime rates if those terms are outside the scope of the particular application before the commission.
We are and have been incredibly confident that the bill as introduced, without this amendment, would not have operated in this way. However, the government is committed to ongoing genuine consultation, which I have afforded to the opposition but also, of course, to business, employer representatives and unions. We are amending the bill for the avoidance of any doubt and to provide certainty for stakeholders, in good faith. I commend the amendment.
Question agreed to.
Tim Wilson
I ask leave of the House to move opposition amendments (1) and (2) together, as circulated in my name.
Milton Dick
I call the Leader of the House.
Tony Burke
No such amendments have been circulated or exist, so we should continue.
Milton Dick
I'll just clarify with the clerks. The normal way is that the amendments are presented. I understand the instruction was given to only circulate them after the speech. That's the way consideration in detail works, to keep the smooth running of the House. The Leader of the House.
Tony Burke
There is nothing for us to give leave to because there is nothing that the House is in possession of. People have the choice as to whether they circulate or not. If you don't circulate, you've got to read the whole thing out, which he should now do.
Milton Dick
We're going to do this efficiently. The member for Goldstein can read the amendment out, then.
Tim Wilson
Sure. Amendment (1) reads:
Schedule 1, item 1, page 3 (line 6) to page 3 (line 18), omit section 135A, substitute:
135A Special provisions relating to penalty rates and overtime rates
(1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must be satisfied that:
(a) the rate of a penalty rate or an overtime rate that employees are entitled to receive under the modern award is not reduced; and
(b) modern awards do not include terms that substitute employees' entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that an affected employee would otherwise receive under the modern award.
(2) Subsection (1) does not apply when the—
Milton Dick
Just a moment, Member for Goldstein, I'll get you to take a seat. The Leader of the House.
Tony Burke
I think what the member for Goldstein is trying to do is move the amendments, which means he has to say at the start that he is moving them and then go through the provisions he is moving, otherwise there will be nothing before the House.
Milton Dick
Member for Goldstein, you've made the decision to read the amendments out, but, just before you start, to assist the House, could you say formally, 'I move the amendments,' and then begin.
Tim Wilson
by leave—I move opposition amendments (1) and (2) together:
(1) Schedule 1, item 1, page 3 (line 6) to page 3 (line 18), omit section 135A, substitute:
135A Special provisions relating to penalty rates and overtime rates
(1) In exercising its powers under this Part to make, vary or revoke modern awards, the FWC must be satisfied that:
(a) the rate of a penalty rate or an overtime rate that employees are entitled to receive under the modern award is not reduced; and
(b) modern awards do not include terms that substitute employees' entitlements to receive penalty rates or overtime rates where those terms would have the effect of reducing the additional remuneration referred to in paragraph 134(1)(da) that an affected employee would otherwise receive under the modern award.
(2) Subsection (1) does not apply when the FWC exercises powers under this Part pursuant to:
(a) section 144 (flexibility terms); or
(b) section 160 (which deals with variation to remove ambiguities or correct errors); or
(c) paragraph 157 (3)(a) (own initiative).
(3) Paragraph (1)(b) does not apply when the FWC exercises powers under this Part in relation to terms of a modern award that substitute employees' entitlements to receive penalty rates or overtime rates where those terms existed immediately prior to commencement of Subsection (1).
(4) Paragraph (1)(b) does not apply when the FWC exercises powers under this Part in relation to terms of a modern award that substitute employees' entitlements to receive penalty rates or overtime rates where those terms are expressed to apply only to a small business employer.
(5) Subsection (1) does not limit the FWC's ability to make a determination to vary a modern award where the determination is made:
(a) to ensure that awards are operating effectively by addressing any anomaly or technical irregularity in the award arising from either the making of the award or past variations to it; or
(b) as an outcome of proceedings commenced by the Commission of its own motion if Commission is satisfied is necessary to achieve the modern awards objective and compliance with section 138, or
(c) following the Fair Work Commission being satisfied that the variation is fair to employees and that it would:
(i) improve productivity; or
(ii) promote employment opportunities or the participation of employees in paid work; or
(iii) assist employees to balance their work and family commitments.
(2) Schedule 1, page 4 (after line 3), at the end of the Schedule, add:
3 Regulatory impact statement
(1) The Minister must cause a regulatory impact statement to be prepared in relation to the operation of the amendments made by this Act.
(2) The persons preparing the regulatory impact statement must complete it within one year after this Act commences.
(3) The persons preparing the regulatory impact statement must give the Minister a copy of the statement.
(4) The Minister must cause a copy of the regulatory impact statement to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives a copy of the statement.
We just had a long dissertation on the amendments put forward, even though I understand they have been provided to the Clerk. But the Leader of the House, in his brilliance and capacity to be able to manage the challenges of this parliament, particularly its committee process, is, of course, being a pedant. So be it. There is a simple reality: we support penalty rates. We understand how important it is to support jobs and small businesses, and there are no penalty rates on jobs that don't exist. We have gone directly to the Australian people because the minister has shut down any pathway of understanding the impact of the legislation she is putting before the House. She is not interested in hearing from nor speaking to nor seeing any small business, so we did the minister's job for her.
Let's look at some of the feedback we have from the Australian community on why these changes are so important, to make sure that these voices are heard: 'I run a small business, and I'd like to know what this new legislation is, because I don't know what it entails'; 'Small business requires owners to work in the businesses, be bookkeepers, know all the taxes, know all the fair work laws, know all retail and wage laws and make sure everything is on paper. Penalties are great if not done'; 'Big businesses have accountants and PR and HR professionals—things small businesses can't afford'; 'At present we have good businesses closing down which can't sell'; 'No-one wants the stress, pressure and long hours for what now has little reward. It's easy to have a government job with shorter hours, large penalty rates, holidays, sick leave et cetera.' This is the problem. Without any proper consultation, the government has not understood the consequences of its legislation and the impact it's going to have on small businesses. The minister's understanding of small business, and this government's understanding of small business, is that corner shops have HR departments, legal departments and special advisers.
By the way, that's where all the money for penalty rates for young Australians and people who want to get ahead and get paid well gets sucked into: non-economically-productive activity to manage the realities of laws in this country. When we talk about simplification, we're talking about getting rid of needless legal work, needless accounting work and needless industrial relations advice so you can actually pay Australians more. It's simpler, cleaner and easier so Australians can get ahead, support their families, be in a position to have flexibility in their workplace arrangements and do things like pick up kids from school or manage work-life balance. It seems an entirely logical thing to do, except, of course, if you're part of the Albanese government. If you know this is the reality, and you know this is the consequence of legislation put forward to this House, the questions for the minister, the Prime Minister and, of course, everybody on Labor benches are: Why do they not want to hear from small business, see small business or talk to small business? Why don't they want to have a conversation where they can give the voices of small business a say in this nation's parliament?
We have had sloppy drafting at every stage of this legislation. This is not just my view; it's, of course, the view of industry, who have explicitly said that these are badly drafted laws. To the credit of the minister, she moved an amendment to address some of the sloppy drafting in her legislation, just now, and we supported her. We supported her because we actually want to make sure we get the legislation we need so that we get the outcome that we want for the Australian people. I will take a point of slight hilarity, which is that she's now accusing me of being disingenuous in my approach—through the Speaker, of course. The minister simply doesn't understand. Some of us believe in empowering Australians. Some of us—
Milton Dick
We're dealing with technical amendments. This is not a general debate. This applies to everyone who moves consideration in detail. I've allowed some latitude here. To assist the House, member for Goldstein, make your remarks about the regulatory impact statement and the reasons behind that, perhaps.
Tim Wilson
One of the reasons we want a regulatory impact statement is that we need to understand the direct consequence of this legislation on those people it's designed to impact. We have a current situation where the minister doesn't want to engage with small business or do a regulatory impact statement. And, even worse, when she's asked how many small businesses in this country are going to be affected, she cannot answer the simple question. It's a simple expectation. You've got legislation. You're trying to effect change. You're claiming it's positive, so tell me how many small businesses in this nation these laws will have an effect on.
Long debate text truncated.
Summary
Date and time: 12:23 PM on 2025-07-31
Allegra Spender's vote: Aye
Total number of "aye" votes: 40
Total number of "no" votes: 93
Total number of abstentions: 17
Related bill: Fair Work Amendment (Protecting Penalty and Overtime Rates) Bill 2025
Adapted from information made available by theyvoteforyou.org.au