The majority voted in favour of a motion "that the bill, as amended, be agreed to", which means they can now decide whether to pass the bill in the House.

What does this bill do?

According to the bills digest:

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 aims to make numerous changes to industrial relations legislation with the intention of:

• encouraging and facilitating enterprise bargaining, and multi-business enterprise bargaining in particular
• simplifying the bargaining and approval processes for enterprise agreements, including simplifying the better off overall test (BOOT)
• improving job security and gender equity, including by limiting the use of fixed term contracts and prohibiting pay secrecy clauses
• improving workplace conditions and protections by providing an enforceable right to request flexible working arrangements
• abolishing the Australian Building and Construction Commission and making the Fair Work Ombudsman the workplace relations regulator for the building and construction industry
• abolishing the Registered Organisations Commission and transferring its functions to the General Manager of the Fair Work Commission and
• enacting other measures not examined in this Digest.

The majority voted in favour of disagreeing with amendments introduced by Warringah MP Zali Steggall (Independent), which means they failed.

What do the amendments do?

Ms Steggall explained that:

Amendments (1) to (3) deal with potential impacts on the productivity of businesses being roped into multi-employer bargaining after it has been completed. They haven't even been part of the negotiations, and the bill currently allows an employee representative—the union—to join an employer to a multiparty EBA after the conclusion of the agreement. The Fair Work Commission should consider the potential impact on the productivity of a business as a result of being compelled to sign onto the EBA. This is a straightforward amendment that should not be objected to by the government.

The public interest test is amendment (6). Again, the amendment deals with the potential effects on productivity and competition. The bill as currently drafted requires the Fair Work Commission to be satisfied that it is not contrary to the public interest to do so before making a single-interest authorisation. The problem is that the drafting does not specify what would be contrary to the public interest. There is, therefore, no guarantee that the Fair Work Commission would take into account the benefits to productivity, competition and consumer protection that come from enterprise-level collective bargaining. The proposed amendment would require the Fair Work Commission to take into account the need to achieve productivity and fairness through an emphasis on enterprise-level collective bargaining and the need to enhance the welfare of Australians through the promotion of competition and fair trading and the provision of consumer protections.

Amendment (5) deals with common interest. In the single-interest stream, the common interest test in the current bill is very loosely defined and could have the effect of lessening competition by obliging smaller competitors to agree to multi-employer agreements with much larger businesses, with the potential for the smaller competitors to simply be priced out of the market. My proposed amendments would oblige the Fair Work Commission to take into account the economic circumstances and the relative sizes and scope of the employers' enterprises, as well as the extent to which the employers operate collaboratively rather than competitively, when determining whether the employers have a common interest.

Of course, we've heard much today of the small business definition. The bill currently exempts businesses with fewer than 15 employees from being forced into single-interest employer bargaining. That figure is ridiculous. Many businesses with up to 50 employees would be unable to compete with large businesses who could afford to absorb the extra cost. They will go to the wall. What the amendment proposes is that it be at 50 full-time equivalent. At the very least, the government is saying it will consider it, and there is dispute on this number.

The majority voted in favour of disagreeing with amendments introduced by Wentworth MP Allegra Spender (Independent), which means they failed.

What were the amendments?

Ms Spender explained that:

My amendments ... will make this bill more workable for businesses, particularly small businesses, who have had an incredibly tough time in recent years. It will make it more workable for workers, who desperately need a pay rise to cope with the rising cost of living.

Many of the concerns of this bill can be undone with one simple amendment: let businesses consent to multi-party bargains in the single interest stream.

The majority voted in favour of disagreeing with amendments introduced by Mayo MP Rebekha Sharkie (Centre Alliance), which means they failed.

What does this amendment do?

Ms Sharkie explained that:

The purpose of this amendment is to amend section 23 of the Fair Work Act with the effect of changing the definition of a small business. Currently, section 23 defines a small business as a business comprising of 15 employees or less. Casuals are not included in this count unless there is a systematic or regular nature to their employment. For most businesses this would mean most, if not all, of their casual the employees would be included in the employee count for the purposes of defining a small business.

My amendment seeks to change the number of employees that define a small business from 15 to 100. The rationale for this change is simple. Businesses with fewer than 100 staff do not have the human resources departments, they do not have the pay roster, they simply do not have capacity to expend resources—financial and human—to negotiate enterprise bargaining agreements that this bill will potentially force upon them. Without this change we are relegating the thousands of mum-and-dad businesses and entrepreneurial enterprises to an immediate future of costly union-led negotiations. These businesses, many of which are still trying to recover from COVID-19, cannot afford the time or the financial resources.

Amendment text

That the following words be added after the words 90 days: ."; and

(1) parts 1, 2 and 3 of the bill are added to the inquiry; and

(2) calls on the Government to change the definition of a small business from 15 to 100 employees".

The majority voted in favour of disagreeing with amendments introduced by Bradfield MP Paul Fletcher (Liberal), which means they failed.

What do these amendments do?

Mr Fletcher explained that:

Amendments (1), (9) and (25) of those that I've moved would remove provisions in the bill which go to the abolition of the Registered Organisations Commission. ... Amendments (2) and (10) of those I've circulated would remove the provisions in the bill which abolish the Australian Building and Construction Commission. ... Amendments (3) to (8), (11) to (15), (23) to (24), (26) to (28) and (30) would remove all of the provisions in the bill relating to changes in multi-employer bargaining. ... Amendment (29) would provide for the minister to be required to conduct a review of the operation of the amended provisions of the act after they have operated for 12 months.

[...]

Business groups are united in their condemnation of the common interest provision being so broad as to be simply ridiculous. The mere fact of two businesses physically being located together would satisfy the very wide definition of 'common interest.' ... Amendments (16), (20) and (22) would implement this change.

[...]

We're opposed to the compulsion in the legislation of the single interest employer authorisation provisions. Amendments (17) and (19) give effect to our opposition to the government's compulsion provisions. We oppose the way the bill has dealt with the question of public interest; amendment (18) gives effect to our position there. 'Common interest' needs a clear definition; amendment (21) gives effect to that. Amendment (29) would provide for the minister to be required to conduct a review of the operation of the amended provisions of the act after they have operated for 12 months.

The majority voted in favour of Government amendments, which means they will now form part of the bill.

Watson MP Tony Burke (Labor) explained the amendments, saying that "Since the introduction of these reforms on 27 October, my department and I have continued to consult closely with businesses and unions. These amendments make sensible changes to the bill to address issues arising during consultation."

The majority voted in favour of disagreeing with an amendment introduced by Wentworth MP Allegra Spender (Independent), which means it failed. This would have amended government amendment (30).

What does this amendment do?

Ms Spender explained that:

The most concerning part about the government amendments is the provision giving unions veto power over enterprise agreements. This means that an unscrupulous individual can hold a business and its workforce to ransom, demanding concessions or private benefits that may not be in the interests of union members or other employees. The minister has argued that bad actors may seek to encourage workers to agree to something that is not in their interests. I accept that there are those bad actors. However, this veto power goes too far. It is unconscionable that any government would seek to provide a veto power of this nature, particularly to its financial backers.

My amendment negates the veto power by saying that employers must have written agreement from the union or provide reasonable opportunities for unions to communicate their concerns to employees. I believe that the employees should be well informed about any change to any agreement that comes to them, and I support that the union can provide an important perspective on that. However, it is fundamentally up to individuals to decide whether or not they get to vote on an agreement and whether an agreement is in their interests. If a union thinks it's a dud then let them say so, but let employees decide for themselves what is best for them.

Ms Spender's amendment

Amendment (30), item 506B, at the end of subsection 180A(2), add ", or must ensure bargaining representatives have a reasonable opportunity to communicate and reasons for not providing written agreement to employees".

Government Amendment (30)

30. While the FWC must give consideration to the views of the parties, and primary consideration to a common view in certain circumstances, the FWC [Fair Work Commission] remains required to undertake its own independent assessment in applying the BOOT [better off overall test] pursuant to section 193A.

The majority voted in favour of a motion "that the bill be read a second time", which is parliamentary jargon for agreeing with the main idea of the bill.

What is the bill's main idea?

According to the bills digest:

The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 aims to make numerous changes to industrial relations legislation with the intention of:

• encouraging and facilitating enterprise bargaining, and multi-business enterprise bargaining in particular
• simplifying the bargaining and approval processes for enterprise agreements, including simplifying the better off overall test (BOOT)
• improving job security and gender equity, including by limiting the use of fixed term contracts and prohibiting pay secrecy clauses
• improving workplace conditions and protections by providing an enforceable right to request flexible working arrangements
• abolishing the Australian Building and Construction Commission and making the Fair Work Ombudsman the workplace relations regulator for the building and construction industry
• abolishing the Registered Organisations Commission and transferring its functions to the General Manager of the Fair Work Commission and
• enacting other measures not examined in this Digest.

The majority voted in favour of disagreeing with an amendment moved by Mayo MP Rebekha Sharkie (Centre Alliance), which would have amended another amendment moved by Wentworth MP Allegra Spender (Independent).

Amendment text

That the following words be added after the words 90 days: ."; and

(1) parts 1, 2 and 3 of the bill are added to the inquiry; and

(2) calls on the Government to change the definition of a small business from 15 to 100 employees".

Ms Spender's original amendment text

That all words after "reading" be omitted with a view to substituting the following words:

"until an inquiry into parts 11, 15, 18, 19, 21 and 22 of the bill is undertaken by a House or Senate committee, with the inquiry lasting not less than 90 days".