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".

The majority voted in favour of a motion introduced by Watson MP Tony Burke (Labor), which means it passed. This means that the usual procedural rules - known as standing orders - will be suspended and the timetable set out below will take place instead.

Motion text

That so much of the standing and sessional orders be suspended as would prevent the following from occurring in relation to proceedings on the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022:

(1) on Tuesday, 8 November when the bill is called on, the Leader of the Opposition, or a Member representing, speaking for no longer than 30 minutes;

(2) the time limit for other Members speaking on the second reading debate being 10 minutes;

(3) on Wednesday, 9 November, the second reading debate continuing when the bill is called on;

(4) notwithstanding standing order 31, at 8 pm on Wednesday, 9 November, the bill being called on for further consideration;

(5) the second reading debate continuing until either:

(a) no further Members rise to speak; or

(b) a Minister requires that the debate be adjourned at no earlier than 10 pm, at which point, debate being adjourned and the House immediately adjourning until Thursday, 10 November at 9 am;

(6) from 9 pm on Wednesday, 9 November, the time limit for Members speaking on the second reading debate being 5 minutes;

(7) from 7.30 pm on Wednesday, 9 November until the adjournment of the House:

(a) any division called for being deferred until the first opportunity on Thursday, 10 November; and

(b) if any Member draws the attention of the Speaker to the state of the House, the Speaker announcing that he will count the House at the first opportunity on Thursday, 10 November, if the Member then so desires;

(8) on Thursday, 10 November when the bill is called on, questions being immediately put on any amendments moved to the motion for the second reading and on the second reading of the bill;

(9) if required, a consideration in detail stage of the bill, with all government amendments to be moved together, all opposition amendments to be moved together, and any crossbench Members' amendments to be moved as one set per Member, with:

(a) one question to be put on all government amendments;

(b) one question to be put on all opposition amendments;

(c) separate questions to be put on any sets of amendments moved by crossbench Members; and

(d) one question to be put that the bill [as amended] be agreed to.

(10) should a Minister require, any question provided for under paragraph (9) being put after no less than 10 minutes of debate on each set of amendments;

(11) when the bill has been agreed to, the question being put immediately on the third reading of the bill; and

(12) any variation to this arrangement being made only on a motion moved by a Minister.

The majority voted in favour of disagreeing with an amendment to another motion, which means it failed.

Amendment text

That all words after paragraph (1) be omitted and the following be inserted:

(2) the question on the second reading of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 not be put until such time as every other Member willing to speak on the question has spoken for up to 15 minutes as provided for under standing order 1.

The majority voted in favour of disagreeing with amendments introduced by Warringah MP Zali Steggall (Independent), which means they failed and won't be included in the bill.

Rebellion

Bass MP Bridget Archer (Liberal) crossed the floor to vote 'No' in this division while the rest of her party voted "Yes". This means that Ms Archer supported these amendments.

What did the amendments do?

Ms Steggall explained that:

There are two components to the amendment that I have circulated. It's a simple amendment to the drafting of the objects of the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Bill 2022. What's important in the first part of this amendment is that it's consistent with recommendation 16a of the Respect@Work report. This amendment omits the 'so far as practicable' from the objects. This is necessary because the current wording introduces a lower standard than is proposed in recommendation 16 of the Respect@Work report. It's inconsistent with several other objects contained in section 3 of the Sex Discrimination Act, which sets a higher standard. It may give rise to the implication that rights codified in the Convention on the Elimination of all Forms of Discrimination Against Women will only be protected domestically to the extent that it is practicable to do so.

In relation to the second part of the amendment, it is about changing the language used. The objects as drafted by the government in the bill refer to men and women specifically. We need to start moving to gender neutral language. Legislation in this place needs to start embracing the future and younger generations, who are not defined by gender language. In line with the Commonwealth Latimer House principles, gender neutral language should be used in the drafting and use of legislation.

Amendment text

(1) Schedule 8, item 2, page 44 (lines 9 and 10), omit the item, substitute:

2 Paragraph 3(e)

Repeal the paragraph, substitute:

(e) to achieve substantive equality for everyone, irrespective of gender or sexual orientation.

The majority voted in favour of disagreeing with amendments introduced by Wentworth MP Allegra Spender (Independent), which means they failed and won't be included in the bill.

Rebellion

Bass MP Bridget Archer (Liberal) crossed the floor to vote 'No' in this division while the rest of her party voted "Yes". This means that Ms Archer supported these amendments.

What did the amendments do?

Ms Spender explained that:

I celebrate the respect at work bill and I commend the government for putting forward this legislation at this time. However, in the noble pursuit of swiftly implementing the remaining findings of the Respect@Work report, this bill is too narrowly focused on sex. Hostile environment provisions and the positive duty to prevent discrimination do not extend to the full range of characteristics protected under the Sex Discrimination Act, including sexual orientation, gender identity, intersex status, pregnancy or relationship status. In particular, this bill does not provide appropriate protection to LGBTQ people. That is absolutely crucial in our consideration because there's ample evidence that LGBTQ people are particularly vulnerable to hostile environments in the workplace and are particularly vulnerable to the mental health impacts of such environments.

The bill also creates inconsistency in terms of what we're asking from business, who must already comply with antidiscrimination law that relates to all the protected characteristics under the Sex Discrimination Act.

The amendment I have moved extends the hostile workplace environment and positive duty provisions in this bill to cover all characteristics that are protected under the Sex Discrimination Act. It provides protections for the LGBTQ community and greater consistency and ease of implementation for business. I commend the amendment to the House.

Amendment text

(1) Schedule 1, item 2, page 3 (line 12), after “sex”, insert “, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities”.

(2) Schedule 1, item 3, page 3 (before line 15), before the definition of workplace , insert:

discrimination matter means the following:

(a) a matter mentioned in any of paragraphs 5(1)(a) to (c) (sex discrimination);

(b) a matter mentioned in any of paragraphs 5A(1)(a) to (c) (discrimination on the ground of sexual orientation);

(c) a matter mentioned in any of paragraphs 5B(1)(a) to (c) (discrimination on the ground of gender identity);

(d) a matter mentioned in any of paragraphs 5C(1)(a) to (c) (discrimination on the ground of intersex status);

(e) a matter mentioned in any of paragraphs 6(1)(a) to (c) (discrimination on the ground of marital or relationship status);

(f) a matter mentioned in any of paragraphs 7(1)(a) to (c) (discrimination on the ground of pregnancy or potential pregnancy);

(g) a matter mentioned in any of paragraphs 7AA(1)(a) to (c) (discrimination on the ground of breastfeeding);

(h) a matter mentioned in any of subparagraphs 7A(b)(i) to (iii) (discrimination on the ground of family responsibilities).

(3) Schedule 1, item 4, page 3 (lines 19 to 29 ), omit section 8A, substitute:

8A Workplace environment that is hostile for 2 or more reasons

For the purposes of this Act, a workplace environment may be offensive, intimidating or humiliating to a person by reason of a discrimination matter if it is offensive, intimidating or humiliating by reason of 2 or more matters that include a discrimination matter, whether or not the discrimination matter is the dominant or substantial reason.

(4) Schedule 1, item 5, page 4 (line 5), at the end of subsection 28M(1), add “, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities”.

(5) Schedule 1, item 5, page 4 (lines 7 and 8), omit “the ground of sex”, substitute “a ground mentioned in subsection (1)”.

(6) Schedule 1, item 5, page 4 (lines 13 to 22), omit paragraph 28M(2)(c), substitute:

(c) a reasonable person, having regard to all the circumstances, would have anticipated the possibility of the conduct resulting in the workplace environment being offensive, intimidating or humiliating to a person with the characteristics of the second person by reason of a discrimination matter.

(7) Schedule 1, item 6, page 5 (line 4), after “sex”, insert “, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities”.

(8) Schedule 2, item 8, page 7 (line 23), after “sex”, insert “, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities”.