Woodhouse Michael: Employment Standards Legislation Bill — In CommitteeText is incorporated into the Bound VolumeWoodhouse Michael: Employment Standards Legislation Bill — In Committee[Sitting date: 08 March 2016. Volume:711;Page:9476. Text is incorporated into the Bound Volume.]Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety): I do promise the Committee that we will not turn this into the “Lees-Galloway-Woodhouse Show” but Mr Lees-Galloway has raised some very important points that I think probably bear addressing now and that will help frame the rest of the debate on Part 2. Actually in doing so my view is that in starting his intervention he suggested that new section 67E(2) inserted by clause 87 was so so important because without it we would entrench zero-hour contracts and he then went on to explain why that was not the case. I will explain what I mean because he has actually raised a very important concern that some listening will have which is that if we came out of the select committee with a bill that allowed people to have an availability provision but no commitment of hours why is it such a big improvement to have the commitment of even 1 hour of work and a provision for an availability of hours? Why does that make such a big difference?He did allude actually to the answer to that question because it is not appropriate—and he did not do this—for anyone to read the amendment in his Supplementary Order Paper 155 in isolation from two or three important clauses in this bill. With respect Mr Lees-Galloway actually articulated the position of the bill without the amendment implying that the availability provision would not be without fetter and that is simply not true. There is no expectation that somebody should be available without other things happening and I want to go through what they are.Firstly in new section 67E(3)(a) an employer cannot just make an employee be available. They need to have reasonable grounds to do so—genuine reasons based on reasonable grounds. I would suggest that saying “I might be busy on Friday night or I might not.” is not reasonable grounds because that is actually what has been happening particularly in the hospitality industry. Then he went on to quite rightly point out the key to this regardless of his amendment which is new section 67E3(b) which states: “the availability provision provides for the payment of reasonable compensation to the employee for making himself or herself available to perform work under the provision.” It has to be in writing—that is what new section 67E(3A) says underneath it. It is not enforceable unless it is agreed in advance. That too is a significant change. These are all changes the select committee has made to strengthen the issues around availability.Then Mr Lees-Galloway quite rightly points out the issue of proportionality and that is the key to this around the guaranteed hour question. There will be a concern perhaps from union members and delegates that there is a risk that an employer makes a commitment to 1 hour of work and then has an availability provision. Firstly it has to be on reasonable grounds. I cannot imagine for the life of me how that could be reasonable but it would be open to them to demonstrate that. And secondly it has to be compensated for. But thirdly as Mr Lees-Galloway says it has to be proportionate. So it is simply not lawful once this bill has passed to say: “I will give you 1 hour but you have got to be available for 39 hours.” Even if that compensation is reasonable it is not proportionate and therefore it would be ruled unlawful under the Act when it is passed.So I think that is really important. I do not want to labour the point about availability or about whether this is a big change or a small change because I think we are going to get over the line anyway but I do encourage members when they are considering these clauses—these crucial clauses—to look at them holistically both with the reasonableness the proportionality and the requirements to compensate for availability and now Mr Lees-Galloway’s expectation that it should be a mutual commitment of hours.I will just finish what I hope will be my last intervention—unless there are some quite specific technical questions—which is around the cancellation of shifts because I think this is a very important issue that requires in advance again there to be very good reasons. We have worked quite hard again with officials to make sure that although we do not prescribe every situation where that might be appropriate we do give broad guidance not just to the employers but to employees as well about when it would be appropriate in the circumstances. I am thinking about the horticulture industry where weather disruptions are pretty normal but the key to this is actually the commitment of hours. So with the cancellation of a shift if you have a mutual commitment of say 16 or 24 hours they would then have to be automatically put into the next day if you have got a commitment to work those hours of a week. There is also a requirement for compensation even if they are extra hours.