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.

The majority voted in favour of a motion introduced by NSW Senator Mehreen Faruqi, which means they succeeded.

Motion text

That there be laid on the table by the Minister representing the Minister for Education, by no later than 9.30 am on Thursday, 8 December 2022, any modelling, costing or analysis that has been conducted by the Department of the Treasury or the Department of Education in relation to modifications to and/or the removal of the Child Care Subsidy activity test since 1 January 2022.

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 against a motion introduced by NSW Senator David Shoebridge (Greens), which means it failed.

Motion text

(1) That there be laid on the table by the Minister representing the Attorney-General, by no later than 10 am on Thursday, 15 December 2022, all correspondence, emails, briefings, notes, meeting agendas and minutes, and other records of interactions between the Attorney-General or the Attorney-General's Department and New South Wales or Queensland authorities responsible for prisons since 1 January 2022 in relation to:

(a) the visit to Australia by the United Nations Subcommittee on Prevention of Torture in October 2022; or

(b) the implementation of the Optional Protocol to the Convention Against Torture.

(2) For the purposes of this order, 'New South Wales or Queensland authorities responsible for prisons' includes but is not limited to:

(a) ministers of the New South Wales or Queensland governments;

(b) the New South Wales Department of Communities and Justice;

(c) Corrective Services NSW;

(d) the Queensland Department of Justice and Attorney-General;

(e) Queensland Corrective Services; and

(f) individual prisons, mental health facilities or other places of detention within New South Wales or Queensland.

The majority voted against an amendment introduced by ACT Senator David Pocock (Independent) and NSW Senator David Shoebridge (Greens), which means it failed.

What does the amendment do?

Senator Shoebridge explained that:

This amendment would provide for the oversight committee when it's considering just two critical issues, which are the appointment of the commissioner and the appointment of the inspector. It would provide that the oversight committee could only make that decision by a simple majority of members—not a super majority but a simple majority of members. It also provides that when determining that majority the provisions that provide for a casting vote of the chair do not apply. So, in other words, 50 per cent plus one of the members in attendance of the committee have to agree to the appointment of a commissioner or an inspector. Why is that important? It's important because it's hard to think of a more critical job for the oversight committee than determining who the commissioner and inspector of the NACC will be. On the current drafting, where the committee is six members of the government chosen from both houses and six non-government members—four of the opposition and two of the crossbench—chosen from each house, if there is an equality of votes then the government chair gets to determine the outcome. That effectively hands complete control to the government of the day in that critical decision about the appointment of a commissioner.

Amendment text

(1) Clause 178, page 150 (after line 17), after subclause (2), insert:

(2A) If the proposed recommendation is for the appointment of the Commissioner or the Inspector:

(a) the decision to approve or reject the recommendation is to be determined by a simple majority of members of the Committee; and

(b) paragraph 173(5)(b) does not apply in relation to a vote on a decision to approve or reject a proposed recommendation.

The majority voted against amendments by NSW Senator David Shoebridge (Greens), which means they failed.

What do the amendments do?

Senator Shoebridge explained that:

Taken together, these amendments will expressly empower the oversight committee to request draft estimates—the draft budget, effectively—for the National Anti-Corruption Commission. They will then require the NACC to provide those draft estimates to the committee and then allow the committee expressly to make recommendations to both houses of parliament and to the Attorney-General on those draft estimates. In other words, if there's not enough money in the kitty for the NACC, if there's not enough money being provided for them to do their job, then the committee can recommend what the level of funding should be during the budget process.

As I said before, and I won't repeat the submissions we made about how this already works for the National Audit Office, these amendments seek to draw from that experience and the longstanding provisions for the National Audit Office. It simply repeats those workable, functioning provisions for the National Audit Office for the National Anti-Corruption Commission.

Amendment text

(7) Page 147 (after line 12), after clause 176, insert:

176A Committee may request draft estimates for NACC

(1) The Committee may request the Commissioner to submit to the Committee draft estimates for the NACC for a financial year before the annual Commonwealth budget for that financial year.

(2) The Commissioner must comply with the request in time to allow the Committee to consider the draft estimates and make recommendations on them before the budget.

(8) Clause 177, page 148 (after line 18), after paragraph (1)(f), insert:

(fa) to consider draft estimates for the NACC submitted under section 176A;

(fb) to make recommendations to both House of Parliament, and to the Attorney-General, on draft estimates referred to in paragraph (fa);