- Home
- Hansard & Papers
- Legislative Council
- 9 March 2006
Industrial Relations Amendment Bill
Public Sector Employment Legislation Amendment Bill
Printing Tips |
Print selected text
| Full Day Hansard Transcript
« Prior Item |
Item 39 of 49
| Next Item »
Page: 21367
In Committee
The TEMPORARY CHAIRMAN (The Hon. Kayee Griffin): The Committee will deal first with the Industrial Relations Amendment Bill.
Clauses 1 to 3 agreed to.
Reverend the Hon. FRED NILE [5.37 p.m.]: I move:
Page 3, schedule 1. Insert after line 2:
[1] Sections 127A–127G
Omit the sections.
[2] Chapter 2, part 11
Insert after part 10 of Chapter 2:
Part 11 Outworkers in clothing trades
Division 1 Preliminary
129A Definitions
In this part:
constitutional corporation means a corporation to which paragraph 51 (xx) of the Commonwealth Constitution applies.
employer means a person described in clause 1 (f) of schedule 1 as an employer and, in relation to division 3, does not include a person whose sole business in connection with the clothing industry is sale of clothing by retail.
Note. A person described in clause 1 (f) of schedule 1 as an employer is taken to be an employer for the purposes of this Act by section 5 (3).
modification includes addition, exception, omission or substitution.
outworker in the clothing trades means a person described in clause 1 (f) of schedule 1 as an employee.
Note. A person described in clause 1 (f) of schedule 1 as an employee is taken to be an employee for the purposes of this Act by section 5 (3).
relevant clothing trades award means the Clothing Trades (State) Award made by the Commission and published in the Industrial Gazette on 19 October 2001, as amended and in force from time to time.
remuneration means an amount payable, within the meaning of the definition of amount payable in section 364 (1), in connection with work done by an outworker and includes an amount payable to the outworker under the Annual Holidays Act 1944 or the Long Service Leave Act 1955.
unpaid remuneration claim means a claim for unpaid remuneration under section 129D.
Division 2 Conditions of employment
129B Outworkers in clothing trades employed by constitutional corporations
(1) On and from the commencement of this section:
(a) the relevant clothing trades award ceases to have effect as an award in relation to outworkers in clothing trades and employers (but only to the extent that such outworkers are employed by constitutional corporations), and
(b) the conditions of employment set out in that award (as in force from time to time) in relation to outworkers in clothing trades and employers are, by force of this section, the conditions of employment applicable to outworkers employed by constitutional corporations and employers.
Note. The expression conditions of employment is defined in the Dictionary to include any provisions about an industrial matter.
(2) To avoid doubt, subsection (1) (b) extends to conditions relating to the giving out of work by employers.
(3) Nothing in this section affects the continued operation of the relevant clothing trades award in its application to employees not employed by constitutional corporations and their employers.
129C Application of certain enforcement provisions
A reference in part 1 (Breach of industrial instruments) or part 2 (Recovery of remuneration and other amounts) of Chapter 7 to:
(a) an industrial instrument includes a reference to provisions of the relevant clothing trades award applying under section 129B, and
(b) an amount payable under an industrial instrument includes a reference to an amount payable to an outworker under any such provision.
Division 3 Remuneration
129D Claims by outworkers in clothing trades for unpaid remuneration
(1) When may an outworker make an unpaid remuneration claim under this section?
An outworker in the clothing trades may make a claim under this section for any unpaid remuneration against the person the outworker believes is his or her employer (the apparent employer) if the employer has not paid the outworker all or any of the remuneration for work done by the outworker for the employer (the unpaid remuneration).
(2) The claim must be made within 6 months after the work is completed.
(3) How is an unpaid remuneration claim made?
The claim is to be made by serving a written notice on the apparent employer that:
(a) claims payment of the unpaid remuneration, and
(b) sets out the following particulars:
(i) the name of the outworker,
(ii) the address at which the outworker may be contacted,
(iii) a description of the work done,
(iv) the date on which the work was done,
(v) the amount of unpaid remuneration claimed in respect of the work.
(4) The particulars set out in the unpaid remuneration claim must be verified by statutory declaration.
(5) This section applies only in respect of remuneration for work carried out after the commencement of the section.
(6) Clause 3 of schedule 1 does not apply to an employer served with an unpaid remuneration claim under this section.
129E Liability of apparent employer for unpaid remuneration for which an unpaid remuneration claim has been made
(1) Except as provided by subsection (4), an apparent employer served with an unpaid remuneration claim under section 129D is liable (subject to any proceedings as referred to in section 129G) for the amount of unpaid remuneration claimed.
(2) An apparent employer may, within 14 days after being served with an unpaid remuneration claim, refer the claim in accordance with this section to another person the apparent employer knows or has reasonable grounds to believe is the person for whom the work was done (the actual employer).
(3) An apparent employer refers an unpaid remuneration claim in accordance with this section by:
(a) advising the outworker concerned in writing of the name and address of the actual employer, and
(b) serving a copy of the claim (a referred claim) on the actual employer.
(4) The apparent employer is not liable for the whole or any part of an amount of unpaid remuneration claimed for which the actual employer served with a referred claim accepts liability in accordance with section 129F.
129F Liability of actual employer for unpaid remuneration for which an unpaid remuneration claim has been made
(1) An actual employer served with a referred claim under section 129E may, within 14 days after the service, accept liability for the whole or any part of the amount of unpaid remuneration claimed by paying it to the outworker concerned.
(2) An actual employer who accepts liability must serve notice in writing on the apparent employer of that acceptance and of the amount paid.
(3) The apparent employer may, after the apparent employer has paid to the outworker concerned any part of the amount of unpaid remuneration claimed for which the actual employer served with the referred claim has not accepted liability, deduct or set-off the amount the apparent employer has paid to the outworker from any amount that the apparent employer owes to the actual employer (whether or not in respect of work the subject of the referred claim).
129G Recovery of amount of unpaid remuneration
(1) part 2 of Chapter 7 (Recovery of remuneration and other amounts) applies to recovery of an amount payable to an outworker in the clothing trades from an apparent employer who fails to make a payment in respect of an amount of unpaid remuneration for which the employer is liable under section 129E. For the purposes of this section, a reference in part 2 of Chapter 7 to an industrial instrument is to be construed as a reference to the provisions of this section.
(2) In proceedings referred to in subsection (1), an order for the apparent employer to pay the amount concerned must be made unless the apparent employer proves that the work was not done or that the amount claimed for the work in the unpaid remuneration claim is not the correct amount in respect of the work.
129H Offences relating to unpaid remuneration claims and referred claims
A person must not:
(a) by intimidation or by any other act or omission, intentionally hinder, prevent or discourage a person from making an unpaid remuneration claim, or
(b) make any statement that the person knows is false or misleading in a material particular in any notice given for the purposes of section 129E or 129F, or
(c) serve a referred claim on a person under section 129E that the person does not know, or have reasonable grounds to believe, is an actual employer.
Maximum penalty: 100 penalty units.
Division 4 Miscellaneous
129I Effect of this part
(1) This part does not (except as provided by section 129D (6)), limit or exclude any other rights of recovery of remuneration of an outworker in the clothing trades, or any liability of any person with respect to the remuneration of such an outworker, whether or not arising under this Act or any other law or an industrial instrument.
Note. An outworker may, for example, seek an order from an industrial court under section 365 instead of making an unpaid remuneration claim under section 129D.
(2) Nothing in section 129F (3) limits or excludes any right of recovery arising under any other law with respect to any amount of money owed by the apparent employer to the actual employer.
(3) Nothing in this part limits the rights of entry and inspection of officers of industrial organisations for the purpose of investigating any breach of a provision of this part or a condition of employment conferred by or under this part.
129J Relationship of this part to Industrial Relations (Ethical Clothing Trades) Act 2001
In the event of an inconsistency between the provisions of the mandatory code within the meaning of the Industrial Relations (Ethical Clothing Trades) Act 2001 and the provisions of this part (or a condition of employment having effect under this part), the provisions of this part and those conditions of employment prevail to the extent of the inconsistency.
Mr Igor Nossar, the Chief Advocate of the New South Wales Branch of the Textile Clothing and Footwear Union of Australia, asked for my assistance. The union is concerned about the ongoing protection of outworkers, and it asked me to move this amendment to ensure that, in view of the Federal Government's WorkChoices legislation, the New South Wales legislation would not contain any loophole concerning the protection of outworkers. I agreed to do that. The original amendment suggested by the union consisted of just two paragraphs, but after being reviewed by the Parliamentary Counsel it is now four pages long. The amendment deals with the simple proposition of ensuring that the Industrial Relations Amendment Bill contains very important protection for outworkers, irrespective of what happens with the Federal Government's WorkChoices legislation.
Along with many honourable members I have been concerned about the exploitation of outworkers in the clothing industry. We have campaigned to support the Industrial Relations Ethical Clothing Trades Act 2001 and the mandatory code made under that Act: the Ethical Clothing Trades Extended Responsibility Scheme. Both the Act and the scheme were designed to ensure that everyone in the clothing outwork chain of supply takes their responsibilities seriously to ensure the fair treatment of outworkers. I acknowledge that a large number of clothing companies supported that campaign and indicated that they would not stock clothing they believed had come from exploited outworkers. We are pleased that those companies have acted in that responsible way. There is some element of uncertainty as to whether the same degree of protection in that detailed way will automatically be taken up in the Federal Government's WorkChoices legislation. It is my understanding that the Federal Government gave assurances to the Textile, Clothing and Footwear Union and to Fair Wear that State-based protection for outworkers would continue. However, the WorkChoices legislation does not clarify how that might be achieved. Even if it did so, it may lapse at some future date if there are further changes to that legislation.
If schedule 15 to the WorkChoices legislation operates in accordance with its terms, all State awards, including the outworkers' awards, will be converted into federal notional agreements preserving State awards. There may be some problems with other workers in the area of textile production, but I am focusing on the outworker category. The federal legislation recognises that the States have an ongoing role with respect to outworkers. So we are not in conflict with the Federal Government's legislation. Section 7C (3) (ca) of the WorkChoices legislation provides that States can continue to legislate in respect of outworker conditions, including right of entry by union representatives for purposes connected with outworkers. We understand that this is to acknowledge our current and future capacity to do things that help to protect the rights and conditions of outworkers.
I trust that all honourable members will support my amendment. It will preserve all the reporting, registration and other obligations set out in the award relating to outworkers, these being obligations that do not deal directly with the conditions of employment of outworkers but which support compliance with those conditions of employment. Importantly, we note that the amendment proposes that statutory obligations relating to outworkers will continue to be linked with the conditions that are set out in the Clothing (State) Award as that award is varied from time to time. This recognises that the Industrial Relations Commission will continue to play a role in adjusting the State award as it applies to outworkers whose employers are not caught by WorkChoices legislation. WorkChoices does not create real unity because it applies only to employers that are constitutional corporations. Employers that are not constitutional corporations will still be covered by State industrial systems. This is an important amendment.
Ms LEE RHIANNON [5.44 p.m.]: The Greens are pleased to support this amendment. As we know, there has been a very long campaign by outworkers and their supporters to win protection for people who are so extremely exploited. It has been a hard fought campaign, one that received very widespread support because of the creative campaign tactics undertaken by the Textile, Clothing and Footwear Union of Australia, and by the community organisation Fair Wear. Over the years they have drawn attention to the hardship that outworkers—who are in the main women, and usually women of non-English speaking backgrounds—have suffered. We certainly need this amendment to the bill, which is designed to use State mechanisms to provide protection to workers. If the amendment is not passed, the legislative advances that have been made for outworkers in recent times will be wound back because of the terrible legislation that WorkChoices is.
The amendment is a positive step and I congratulate the Government on foreshadowing that it will accept it. It is very detailed and I hope the Government will pick up, in terms of protection, the other sections of the work force that I identified in the second reading debate: local government workers and workers in some State-owned corporations. I understand that the provisions of the Clothing (State) Award are applied under the bill, with modifications, so that protection is fully in place. Because this very complex amendment has come to us so late, I certainly have not had time to read it. I am relying on the fact that the Government is reliable and has been as thorough and detailed as it has said it would be when it comes to protecting outworkers. The Greens will support this amendment.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [5.46 p.m.]: The Government accepts the amendment. I might just make it very clear for the benefit of honourable members that the bill amends two separate Acts. Some of the important protections that are available to outworkers, which I think was mentioned in the previous two contributions, are of course available only under State legislation. It is important that people understand that outworkers are some of the most vulnerable people in the work force, and the Government is happy to accept this provision that will guarantee that the current protections available to them in the State jurisdiction are continued.
Amendment agreed to.
Schedule 1 as amended agreed to.
Title agreed to.
The TEMPORARY CHAIRMAN (The Hon. Kayee Griffin): The Committee will now deal with the Public Sector Employment Legislation Amendment Bill.
Clauses 1 to 8 agreed to.
Ms LEE RHIANNON [5.49 p.m.]: I move:
Page 34, schedule 1. Insert after line 11:
27 Legislation relating to local government staff
The Premier is, within one month of the date of assent to the amending Act:
(a) to ensure that legislation is introduced into both Houses of Parliament that removes the employment functions of local councils and provides instead for staff in the local government sector to be employed by the Government of New South Wales in the service of the Crown, or
(b) to report to both Houses of Parliament on the feasibility of any such proposed legislation (including any legal advice provided to the Government as to the feasibility of the legislation).
The Greens move this amendment because, as I said before, we remain concerned that the bill is leaving large sections of the New South Wales work force out in the cold. Parliament is about to pass these two important industrial relations bills. They are proof that the Government has listened to the unions and to the New South Wales community and has responded to their concerns by using State legislation to provide protection against the damaging WorkChoices legislation. However, the bills do not go far enough.
The Hon. John Della Bosca: It never goes far enough.
Ms LEE RHIANNON: I acknowledge the interjection. But they do not go far enough. Some 24 hours ago it appeared that the House was about to consider the bills in Committee. The Government then correctly pulled back to draft amendments to protect outworkers. That is commendable and the Greens supported that action. We were willing to wait because we appreciated that the issues were complex. But we ask: Why is similar protection not offered to local council workers and the employees of State-owned corporations? That is the big unanswered question. To be frank, the Greens do not have an answer; we do not know how that protection can be provided in law. But the Government has the necessary people and resources. I do not know why they did not work overtime to offer that protection in the Public Sector Employment Legislation Amendment Bill. That is quite worrying and it is why the Greens have moved this amendment.
Greens amendment No. 1 requires that within one month of the assent of this bill, legislation be introduced in Parliament to provide for local government sector workers to be employed by the Government of New South Wales in the service of the Crown. The amendment does not prescribe how that should happen; it simply says that it should. If that is not possible the amendment requires the Government to report to the Legislative Council about the feasibility of providing that protection through some other legal means.
I understand that the Government will not support the amendment. That is disappointing because it does not prescribe how the Government will provide the protection—it is not locked in. But if the Government will not offer protection to council workers and employees of State-owned corporations the Minister must explain clearly why those large sections of the work force have been left out of the legislation. Why have local government workers and some employees of State-owned corporations missed out? The protection for outworkers is great but why was that protection not offered consistently across the board? I look forward to hearing the Minister's response.
The Hon. JOHN DELLA BOSCA (Minister for Finance, Minister for Commerce, Minister for Industrial Relations, Minister for Ageing, Minister for Disability Services, and Vice-President of the Executive Council) [5.53 p.m.]: I thank Ms Lee Rhiannon for the amendment and for her contribution to the discussion. The Government cannot support Greens amendment No. 1 in its present form. It is an unusual amendment in that it does not amend the legislation. If honourable members believe certain measures are necessary and important they are obliged to explore the feasibility of drafting legislation in those terms and introducing it. I am not aware of any other legislation in this or any other Parliament that requires another entity—in this case, the Executive—to introduce an amending bill.
Reverend the Hon. Fred Nile: It may be out of order.
The Hon. JOHN DELLA BOSCA: I will not go into that. The Government believes the appropriate way of dealing with this issue is to proceed with the process that I have announced already. I am consulting local government and the relevant unions about what options will be available to protect local government employees from the Commonwealth's Workplace Relations Amendment (Work Choices) Act. That solution, if any is available, must be workable. If Ms Lee Rhiannon is unhappy with the outcome of this approach I am obviously prepared to discuss the possibility of her introducing a private member's bill. That, one might argue, is her responsibility. The Government may introduce other legislation or take alternative approaches in the near future to give effect to whatever resolution emerges from the discussions that are ongoing between the Minister for Local Government, the service unions involved in local government, the large number—be it for good or for ill—of local government employers across the State and me. An amendment that seeks to charge someone else with the responsibility for doing this is, in the Government's view, not feasible, appropriate or practical. That is why we reject the Greens amendment.
However, the Government agrees with Ms Lee Rhiannon that protections similar to those afforded to other employees should be provided for local government workers. The Government believes nascent in this legislation is a substantial part of the solution for employees of State-owned corporations. This will help them to avoid the worst impacts of WorkChoices. In fact, the legislation may have some tractability for local government employees. The recognition of the capacity of the New South Wales Industrial Relations Commission to arbitrate and conciliate on common law agreements between employers and employees, including collective agreements, may offer a solution as to the best way to protect from WorkChoices the employees of State-owned corporations and others employed under the State system.
I can but speculate about that at this stage. This is obviously new legislation and employees and employers tend to manage around industrial culture, legislation and frameworks as well as within them. However, I expect there to be quite significant take-up in both the private and public sectors of the concept of keeping employment relationships in the State jurisdiction where possible. That concept offers to employees and employers the advantages that flow from having a stable system with an independent umpire. That system has the capacity to resolve disputes and prevent them from dragging on, as occurs under the Commonwealth framework. I expect that take-up to occur, and it may provide part of the solution for the employees of State-owned corporations and perhaps be the starting point for a solution for local government employees. As to other discussions with local government, we are pursuing as many options as we can. I hope and expect that the Government will be in a position to make further announcements about that issue in the coming weeks and months. The Government cannot accept the Greens amendment as drafted.
Amendment negatived.
Schedule 1 agreed to.
Schedules 2 to 5 agreed to.
Title agreed to.
Industrial Relations Amendment Bill reported from Committee with an amendment, and Public Sector Employment Legislation Amendment Bill reported without amendment, and bills passed through remaining stages.
Last modified 05/12/2007 16:30:57 : Update this page