The majority voted against an opposition amendment, which means it failed. It was an amendment to a motion "that the remaining stages of the bill be agreed to and that the bill be now passed."

Amendment text

At the end of the motion, add ", and that paragraph (1) of the resolution of appointment of the Select Committee on Cost of Living be amended as follows:

(1) That a select committee, to be known as the Select Committee on the Cost of Living, be established to inquire into and report on:

(a) the cost of living pressures facing Australians;

(b) the Government's fiscal policy response to the cost of living;

(c) ways to ease cost of living pressures through the tax and transfer system;

(d) measures to ease the cost of living through the provision of Government services;

(e) the impact of the passage of the Treasury Laws Amendment (Energy Price Relief Plan) Bill 2022 on:

(i) energy markets,

(ii) wholesale and retail energy prices or bills, and

(iii) the Consumer Price Index; and

(f) any other related matter".

The majority voted against an opposition amendment to the bill, which means it failed.

Motion text

(1) Title, page 1 (lines 1 and 2), omit the title, substitute:

A Bill for an Act to amend the Federal Financial Relations Act 2009 , and for related purposes

The majority voted in favour of a motion to keep schedule 1 of the bill unchanged. This vote occurred after the Opposition proposed to remove that schedule.

What does schedule 1 do?

The explanatory memorandum - which is prepared by the Government, who introduced the bill - describes it like this:

Schedule 1 to the Bill inserts Part IVBB into the CCA [Competition and Consumer Act 2010] to create an overarching framework to enable the Government to regulate the gas market. Two kinds of legislative instruments will underpin the new framework; gas market codes and gas market emergency price orders. These instruments are collectively referred to as gas market instruments.

First, the Governor-General may, through regulations, make gas market codes. Gas market codes may prescribe a broad range of matters relating to the supply and acquisition of gas commodities, including:

• regulating dealings between persons who supply or acquire a gas commodity, including negotiations between them; and

• dealing with and resolving disputes or complaints between persons who supply or acquire a gas commodity.

Second, the Minister may make gas market emergency price orders regulating the terms on which gas commodities are supplied or acquired, specifically including price. A gas market emergency price order is designed to provide short-term relief from the current energy crisis. The Minister’s power to make gas market emergency price orders sunsets 12 months after the commencement of any order, or 12 months after commencement of the enabling provision in Schedule 1 to the Bill if no order is made. The Minister must consult the ACCC [Australian Competition and Consumer Commission] prior to making a gas market emergency price order, and an order is automatically repealed after 12 months. Gas market emergency price orders provide the basis for emergency price regulation of gas, primarily to reduce domestic prices and address the current energy crisis.

Schedule 1 to the Bill includes a range of mechanisms that are aimed at detecting, deterring and addressing non-compliance with Part IVBB and gas market instruments. The ACCC has the power to require the production of certain information and documents, investigate suspected non-compliance and utilise a range of sanctions that are appropriate and proportionate to the non-compliance.

The consequences of contravening relevant provisions of Part IVBB or a gas market instrument include civil penalties, infringement notices, warning notices and orders under Part VI.

Schedule 1 to the Bill prohibits avoidance schemes that are designed to avoid the application of a civil penalty provision of a gas market instrument.

The majority voted in favour of a motion to agree with the main idea of the bill - known as giving it a second reading - with a proviso added by amendment. The amendment was introduced by South Australia Senator Anne Ruston (Liberal).

Despite this proviso, this vote is essentially about agreeing with the bill, so we are connecting it to the bill-related policies (that is, our policy on a gas price gap).

Motion text

That this bill be now read a second time, but the Senate:

(a) notes that, the Government has prioritised this bill, at the same time it has halved the number of Medicare subsidised psychology sessions at a time when Australians are facing natural disasters, cost of living pressures and household energy bills are skyrocketing; and

(b) calls on the Government to reverse the cuts to these sessions until such time as Australians have adequate access to Medicare subsidised psychology sessions.

What does the bill do?

The bill was put through parliament so quickly that the parliamentary library has not had time to summarise what it does. The explanatory memorandum - which is prepared by the Government, who introduced the bill - describes it like this:

Schedule 1 to the Bill inserts Part IVBB into the CCA [Competition and Consumer Act 2010] to create an overarching framework to enable the Government to regulate the gas market. Two kinds of legislative instruments will underpin the new framework; gas market codes and gas market emergency price orders. These instruments are collectively referred to as gas market instruments.

First, the Governor-General may, through regulations, make gas market codes. Gas market codes may prescribe a broad range of matters relating to the supply and acquisition of gas commodities, including:

• regulating dealings between persons who supply or acquire a gas commodity, including negotiations between them; and

• dealing with and resolving disputes or complaints between persons who supply or acquire a gas commodity.

Second, the Minister may make gas market emergency price orders regulating the terms on which gas commodities are supplied or acquired, specifically including price. A gas market emergency price order is designed to provide short-term relief from the current energy crisis. The Minister’s power to make gas market emergency price orders sunsets 12 months after the commencement of any order, or 12 months after commencement of the enabling provision in Schedule 1 to the Bill if no order is made. The Minister must consult the ACCC [Australian Competition and Consumer Commission] prior to making a gas market emergency price order, and an order is automatically repealed after 12 months. Gas market emergency price orders provide the basis for emergency price regulation of gas, primarily to reduce domestic prices and address the current energy crisis.

Schedule 1 to the Bill includes a range of mechanisms that are aimed at detecting, deterring and addressing non-compliance with Part IVBB and gas market instruments. The ACCC has the power to require the production of certain information and documents, investigate suspected non-compliance and utilise a range of sanctions that are appropriate and proportionate to the non-compliance.

The consequences of contravening relevant provisions of Part IVBB or a gas market instrument include civil penalties, infringement notices, warning notices and orders under Part VI.

Schedule 1 to the Bill prohibits avoidance schemes that are designed to avoid the application of a civil penalty provision of a gas market instrument.

The majority voted against an amendment that would have added the words below to the usual second reading motion, which is "That this bill be now read a second time" - parliamentary jargon for agreeing with the main idea of the bill. It was introduced by Tasmanian Senator Nick McKim (Greens).

A rebel in Labor?

At the time of writing this, parliamentary data shows that South Australian Penny Wong (Labor) crossed the floor to vote "Yes" against the rest of the Labor Party. As Labor Party senators don't tend to cross the floor, it is very unlikely Senator Wong actually rebelled. This is probably an error in the original data set.

Amendment text

At the end of the motion, add ", but the Senate:

(a) notes that:

(i) while this legislation does not include any subsidies to coal corporations, there have been media reports that more than $500 million of coal subsidies are currently under consideration from the Commonwealth and New South Wales Governments, and

(ii) due to the global energy crisis, major coal producers are making billions in windfall profits; and

(b) calls on the Government to reject all new fossil fuel subsidies".

The majority voted in favour of a motion to "put the question". In other words, they voted to stop debate on the issue and instead vote on it immediately.

Rebellion

The Coalition was split on this vote, with South Australian Senator Alex Antic (Liberal) and Queensland Senators Gerard Renick (Liberal) and Matthew Canavan (Liberal National Party) voting "Yes" against the rest of the Liberal and National parties, who voted "No".

The majority voted against amendments introduced by Senator Barbara Pocock (Greens), which means they failed.

What were the amendments?

Senator Pocock explained that:

This amendment does two things. It widens the eligibility for the right to request flexibility, and it establishes a positive duty in favour of creating flexible workplace in Australia. It's 2022. Flexibility should be available to all employees, not just those with narrowly defined family responsibilities. It's only when seeking flexibility is something available to all that the stigma will be removed from asking for it, and we will see more men seeking flexibility and hopefully sharing domestic and care duties as a consequence. Wider eligibility for flexibility has been adopted in the UK, based on clear evidence about its value. Guess what? The sky has not fallen.

The second part of this amendment establishes a positive duty to create flexible workplaces. A modern workplace should create an environment that actively anticipates and responds to the needs of its workers and doesn't require individuals to have to push for it one by one individually, too often at risk of job security. So many employers already do this, talking to employees. This amendment will encourage others to create that positive flexible environment.

Amendment text

(1) Schedule 1, Divisions 1 and 2, page 130 (line 2) to page 131 (line 17), omit the Divisions, substitute:

Division 1 — Requests for flexible working arrangements

Fair Work Act 2009

446 Subsections 65(1), (1A) and (1B)

Repeal the subsections, substitute:

(1) If an employee would like to change his or her working arrangements, the employee may request the employer for a change in working arrangements.

Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.

(2) Schedule 1, item 459, page 132 (lines 4 and 5), omit "relating to circumstances that apply to the employee".

(3) Schedule 1, item 459, page 132 (lines 20 and 21), omit "to accommodate the circumstances mentioned in subsection (1)".

(4) Schedule 1, item 459, page 133 (lines 34 to 36), omit "that would accommodate, to any extent, the circumstances mentioned in subsection (1) and".

(5) Schedule 1, item 463, page 134 (lines 25 and 26), omit "relating to circumstances that apply to the employee".

(6) Schedule 1, item 463, page 136 (lines 25 and 26), omit "to accommodate, to any extent, the circumstances mentioned in paragraph 65B(1)(a)".

(7) Schedule 1, Part 11, page 138 (after line 9), at the end of the Part, add:

Division 5 — Positive duty for flexible working arrangements

Fair Work Act 2009

469AA After paragraph 336(1)(c)

Insert:

(ca) to protect the ability of persons to balance work and family responsibilities, and in doing so to promote gender equality;

469AB After section 351

Insert:

351A Positive duty to ensure flexible working arrangements are made available

Positive duty

(1) An employer must take reasonable and proportionate measures to ensure that, as far as possible, flexible working arrangements are made available to the employees of the employer to assist them to balance their work and family responsibilities.

Note: This section is a civil remedy provision (see Part 4-1).

(2) The following matters are to be taken into account in determining whether an employer complies with subsection (1):

(a) the size, nature and circumstances of the employer's business or undertaking;

(b) the employer's resources, whether financial or otherwise;

(c) the practicability and the cost of making flexible working arrangements available;

(d) whether the employer has complied with any guidelines prepared and published by the FWC under subsection (3);

(e) any other relevant matter.

FWC guidelines

(3) The FWC has the function to prepare, and to publish in such manner as the FWC considers appropriate, guidelines for complying with subsection (1).

(4) In performing its functions under subsection (3), the FWC must have regard to:

(a) the need for guidelines to be available in multiple languages; and

(b) the cultural diversity of Australian workplaces.

Positive duty additional to requirements und er Division 4 of Part 2-2

(5) To avoid doubt, the requirement in subsection (1) applies in addition to the requirements in Division 4 of Part 2-2 (requests for flexible working arrangements).

469AC Subsection 539(2) (cell at table item 11, column 1)

After "351(1)", insert:

351A(1)

The majority voted in favour of amendments introduced by ACT Senator David Pocock (Independent), which means they will now be included in the bill.

What were the amendments?

Senator Pocock explained that:

The amendments on Sheet 1780 ensure that there will be a statutory review no later than two years after the commencement of the legislation. The review will look at, among other things, whether the operation of the amendments made by this act is appropriate and effective and identify any unintended consequences of the amendment made by this act and whether amendments to the Fair Work Act 2009 or any other legislation are necessary to improve the operation of the amendments made by this act or rectify any unintended consequences identified. The persons who conduct the review must give the minister a written report of the review within six months of the commencement of the review, and the minister must then table a copy of the report within 15 sitting days. The amendment on sheet 1781 effectively extends the grace period from six months to nine months by altering the minimum bargaining period. This was something that came up repeatedly in the committee process.

Amendment text

SHEET 1780

(1) Clause 2, page 2 (table item 1, column 1), omit "3", substitute "4".

(2) Page 6 (after line 8), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause a review to be conducted of the operation of the amendments made by 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 this Act is appropriate and effective; and

(b) identify any unintended consequences of the amendments made by this Act; and

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

(i) improve the operation of the amendments made by this Act; or

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

(3) The review must start no later than 2 years after this section 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.

SHEET 1781

(1) Schedule 1, item 543, page 183 (line 20) to page 184 (line 3), omit subsection 235(5), substitute:*

End of the minimum bargaining period

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement—the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement—the day that the authorisation first comes into operation; or

(b) otherwise—the notification time for the proposed agreement.

The majority voted in favour of a motion to agree with government amendments (1) to (34), (36) to (62) and (64) to (68), which means they will now be part of the bill.

Read about the amendments and the reasoning behind them in the supplementary explanatory memorandum.

The majority voted in favour of a motion introduced by ACT Senator Katy Gallagher (Labor), which means it passed.

Motion text

That—

(a) after consideration of the Animal Health Australia and Plant Health Australia Funding Legislation Amendment Bill 2022 has concluded, the questions on all remaining stages of the Financial Sector Reform Bill 2022 only be put without debate; and

(b) paragraph (a) operate as a limitation of debate under standing order 142.