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FOR – Bills — Fair Work Legislation Amendment (Closing Loopholes) Bill 2023; Second Reading

Sue Lines

I will now deal with the committee of the whole amendments, starting with the amendments circulated by the government. I understand the minister has documents to table.

Murray Watt

I table two supplementary explanatory memoranda relating to the government amendments to the bill.

Sue Lines

I will now deal with amendment (6) on sheet ZE249.

Government 's circulated amendment

(6) Schedule 3, item 2, proposed subsection 7(12), to be opposed.

The question is that subsection 7(12) in item 2 of schedule 3 stand as printed.

Question negatived.

The question now is that remaining amendments (1) to (5) and (7) to (12) on sheet ZE249 and the amendments on sheets ZC255 and ZB276 be agreed to.

Government's circulated amendments—

SHEET ZE249

(1) Clause 2 (commencement), subclause (1), omit table item 26, substitute:

(2) Schedule 3 (heading), omit the heading, substitute:

Schedule 3 — Amendment of the Safety, Rehabilitation and Compensation Act 1988

Part 1 — Post-traumatic stress disorder

(3) Schedule 3, item 2, heading to proposed subsection 7(11), omit "first responders", substitute "certain employees".

(4) Schedule 3, item 2, omit proposed paragraphs 7(11)(a) and (b), substitute:

(a) an employee has been diagnosed by a legally qualified medical practitioner or psychologist as suffering, or having suffered, from post-traumatic stress disorder in accordance with the diagnostic criteria in:

(i) the Diagnostic and Statistical Manual of Mental Disorders, fifth edition text revision (DSM-5-TR), published by the American Psychiatric Association in 2022; or

(ii) if a later edition of the Diagnostic and Statistical Manual of Mental Disorders is specified by the Minister by legislative instrument—that later edition of the Manual; and

(b) at any time before symptoms of post-traumatic stress disorder became apparent, the employee:

(i) was employed as a first responder in accordance with subsection (13); or

(ii) was a member of a class of employees declared by the Minister, by legislative instrument made under subsection (13A), to be a class to which this subparagraph applies;

(5) Schedule 3, item 2, proposed subsection 7(11), after "responder", insert "or as a member of the class of employees declared under subsection (13A)".

(7) Schedule 3, item 2, proposed subsection 7(13), omit "paragraph (11)(b)", substitute "subparagraph (11)(b)(i)".

(8) Schedule 3, item 2, at the end of proposed subsection 7(13), add:

; or (f) was the Australian Border Force Commissioner; or

(g) was an APS employee in the Australian Border Force.

(9) Schedule 3, item 2, after proposed subsection 7(13), insert:

(13A) If the Minister is satisfied that the incidence of post-traumatic stress disorder among a class of employees is significantly greater than the incidence of post-traumatic stress disorder among the general public, the Minister may, by legislative instrument, declare that class of employees to be a class of employees to which subparagraph (11)(b)(ii) applies.

(10) Schedule 3, item 3, omit "Schedule" (first occurring), substitute "Part".

(11) Schedule 3, item 3, omit "Schedule" (second occurring), substitute "Part".

(12) At the end of the Schedule 3, add:

Part 2 — Rehabilitation assessments and examinations

Safety, Rehabilitation and Compensation Act 1988

4 Subsection 4(1)

Insert:

approved Rehabilitation Assessments and Examinations Guide means:

(a) the document prepared by Comcare in accordance with section 57A, titled "Guide for Arranging Rehabilitation Assessments and Requiring Examinations", that has been approved by the Minister and is for the time being in force; or

(b) if an instrument varying that document has been approved by the Minister—that document as so varied.

5 After subsection 36(3)

Insert:

(3A) In deciding whether to arrange for an assessment under subsection (1) or to require an examination under subsection (3), the rehabilitation authority must comply with the approved Rehabilitation Assessments and Examinations Guide.

Note: The Guide is prepared by Comcare under section 57A.

6 After subsection 57(1)

Insert:

(1A) In deciding whether to require an examination under subsection (1), the relevant authority must comply with the approved Rehabilitation Assessments and Examinations Guide.

Note: The Guide is prepared by Comcare under section 57A.

7 Subsection 57(6)

Repeal the subsection.

8 After section 57

Insert:

57A Guide for Arranging Rehabilitation Assessments and Requiring Examinations

(1) Comcare must, in consultation with the Commission, prepare a written document to be called the "Guide for Arranging Rehabilitation Assessments and Requiring Examinations" (the Guide).

(2) The object of the Guide is to support ethical, transparent and accountable decision-making in relation to arranging a rehabilitation assessment of an employee under subsection 36(1), or requiring an employee to undergo an examination under subsection 36(3) or 57(1), including appropriate consideration of the employee's personal circumstances.

(3) The Guide must:

(a) provide that, for the purposes of a rehabilitation assessment or examination of an employee:

(i) information in relation to the employee should be sought from the employee's treating practitioner; and

(ii) the employee's treating practitioner and the information (if any) provided by the treating practitioner should be relied on as much as possible before a referral is made to an independent medical practitioner, or other qualified person, in relation to the employee; and

(b) specify the circumstances in which it is appropriate to require an employee to undergo a rehabilitation assessment or examination; and

(c) specify limitations on the frequency and number of rehabilitation assessments or examinations that an employee may be required to undergo; and

(d) specify the qualifications of the person or, if required under section 36, the panel of persons who may conduct a rehabilitation assessment or an examination of an employee; and

(e) require the rehabilitation authority or the relevant authority (as the case requires) to seek, and take into account, the views of an employee, who is required to undergo a rehabilitation assessment or examination, about the selection of the person or, if required under section 36, the panel of persons who are to conduct the rehabilitation assessment or examination; and

(f) require that an employee who is required to undergo a rehabilitation assessment or examination be given a notice of the employee's rights relating to the rehabilitation assessment or examination.

Note 1: For the purposes of paragraph (a), an employee's treating medical practitioner may be nominated to conduct a rehabilitation assessment or examination of the employee.

Note 2: For the purposes of paragraphs (d) and (e), if a relevant authority requires an employee to undergo an examination under subsection 57(1), the examination must be conducted by one legally qualified medical practitioner nominated by the relevant authority.

(4) The Guide may provide for any other relevant matter.

(5) Comcare may, in consultation with the Commission, prepare a written document varying or revoking the approved Guide.

(6) A Guide prepared under subsection (1), and a document prepared under subsection (5), must be approved by the Minister.

(7) A Guide prepared under subsection (1) is a legislative instrument made by the Minister on the day on which the Guide is approved by the Minister.

(8) A document prepared under subsection (5) is a legislative instrument made by the Minister on the day on which the document is approved by the Minister.

9 Subsection 60(1) (definition of determination )

Omit "37 or 39", substitute "37, 39 or 57".

10 Application of amendments

The amendments made by this Part apply in relation to:

(a) a rehabilitation assessment of an employee that is arranged under subsection 36(1) of the Safety, Rehabilitation and Compensation Act 1988, if the assessment is conducted after the commencement of this Part (regardless of when the employee sustained the relevant injury, or when the assessment was arranged); and

(b) an examination that an employee is required to undergo under subsection 36(3) or 57(1) of the Safety, Rehabilitation and Compensation Act 1988, if the examination is conducted after the commencement of this Part (regardless of when the employee sustained the relevant injury, or when the requirement to undergo the examination was made).

_____

SHEET ZC255

(1) Clause 2 (commencement), subclause (1), omit table item 18, substitute:

_____

SHEET ZB276

(1) Clause 2 (commencement), subclause (1), after table item 20A, insert:

(2) After clause 4 (review of operation of amendments), insert:

4A Review of operation of Part 16A of Schedule 1

(1) The Minister must cause a review to be conducted of the operation of the amendments made by Part 16A of Schedule 1 to this Act.

(2) Without limiting the matters that may be considered when conducting the review, the review must:

(a) consider whether the operation of the amendments made by that Part is appropriate and effective; and

(b) identify any unintended consequences of the amendments made by that Part; and

(c) consider whether amendments of the Fair Work Act 2009, or any other legislation, are necessary to:

(i) improve the operation of the amendments made by that Part; or

(ii) rectify any unintended consequences identified under paragraph (b).

(3) The review must start no later than 9 months after that Part commences.

(4) The persons who conduct the review must give the Minister a written report of the review within 6 months of the commencement of the review.

(5) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

(3) Schedule 1, after Part 14A, insert:

Part 16A — Right of entry — assisting health and safety representatives

Fair Work Act 2009

306A At the end of section 494

Add:

Assisting health and safety representatives

(4) Subsection (1), and sections 495 to 498, do not apply to an official of an organisation assisting a health and safety representative on request under a provision of a State or Territory OHS law equivalent to paragraph 68(2)(g) of the Work Health and Safety Act 2011.

(5) However, sections 499 to 504 do apply in relation to the official:

(a) whether or not the official is a permit holder; and

(b) for the purposes of sections 499 to 502—if the official is not a permit holder, as if the official were a permit holder; and

(c) as if giving the assistance to the health and safety representative were authorised by this Part, or were the exercise of rights under this Part (as the case requires); and

(d) for the purposes of section 504—as if that section prohibited the use of information or a document obtained in giving the assistance other than for a purpose related to the exercise or performance of the powers or functions of the health and safety representative (subject to the exceptions set out in that section).

Question agreed to.

I will now deal with the amendments on sheet 2332 circulated by the opposition. As these amendments were circulated after 10 am, they can only be considered by leave. Is a senator seeking leave to move them?

Michaelia Cash

I seek leave to move the amendments on sheet 2332 circulated in my name.

Leave granted.

I move amendments (4) to (9) on sheet 2332 together:

(1) Clause 2, page 2 (table item 7), omit the table item.

(2) Clause 2, page 2 (table item 8), omit the table item.

(3) Clause 2, page 2 (table item 20A), omit the table item.

(4) Schedule 1, Part 6, page 8 (line 1) to page 45 (line 3), to be opposed.

(5) Schedule 1, Part 7, page 46 (line 1) to page 50 (line 2), to be opposed.

(6) Schedule 1, Part 14A, page 72 (lines 1 to 13), to be opposed.

(7) Schedule 1, item 308, page 74 (lines 1 to 22), Division 3 to be opposed.

(8) Schedule 1, item 308, page 74 (line 23) to page 75 (line 30), Division 4 to be opposed.

(9) Schedule 1, item 308, page 76 (lines 9 to 29), Division 6 to be opposed.

Long debate text truncated.

Summary

Date and time: 12:28 PM on 2023-12-07
Senator Pocock's vote: Aye
Total number of "aye" votes: 32
Total number of "no" votes: 25
Total number of abstentions: 19
Related bill: Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Adapted from information made available by theyvoteforyou.org.au