Monday, 22 February 2021
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020; Second Reading
I rise to speak on the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020. As with all omnibus bills, there are good and bad elements. With contentious policy areas such as industrial relations, there is often a polarisation of views, depending on which side of the ideological fence you are on. For example, with respect to this bill, the Labor Party and the unions would have you believe that the world will end if the bill proceeds. The Liberal Party, on the other hand, would have you believe that the world will end if it doesn't proceed. Having looked at the bill and listened to representatives from the ACTU, individual unions, local businesses and industry bodies, there appear to be elements that have merit and some that I believe must be addressed and/or rejected outright.
One element of merit is the introduction of a definition for the term 'casual employee'. Currently the Fair Work Act does not define the term. Instead the meaning is applied from common law. Until recent court decisions, 'casual employee', among other criteria, was loosely defined as employees who were engaged as casuals without expectations of ongoing work and without fixed hours of employment. The Skene and Rossato cases have now created uncertainty for employers, as employees engaged as casuals may now be deemed as other than casuals and at some point in time become entitled to payment of annual and other leave entitlements, even though they have received casual loading. This has left industry with a potential $39 billion in exposure.
Unions have raised concerns that the introduction of a definition of 'casual employment' will deny employees the right to recover entitlements if, during their employment period, the employee was not casual. I don't believe this to be technically true. The bill in this instance takes a common-sense approach, I believe, requiring employees to be entitled to receive in total an amount not less than the casual loading amount. This set-off provision ensures employees receive their legal entitlement and protects employers from paying entitlements twice. Naturally in the Senate, should this bill proceed, there may be amendments with respect to how we create casual employment, but I think that both employers and employees and deserve to have clarity on their roles and responsibilities.
In relation to the compliance and enforcement provision, increasing the cap from $20,000 to $50,000 for small claims wage recovery is an important step, and I think it is admirable. It's insisting employees recover their hard-earned wages in instances where employers have not paid them appropriately. Similarly, the introduction of a criminal offence for wage theft and increasing maximum civil penalties for underpayment contraventions will send the right signal to the small minority of employers that do the wrong thing.
The part-time flexibility amendments may seem sensible. While they reflect the conditions contained in many union negotiated enterprise agreements, I can understand that some unions are worried this has the potential to expect too much flexibility from their employees. They could have 16 hours one week and 32 hours the next. But, of course, when they go to get a bank loan it's only ever the 16 hours that's recognised. As I mentioned, there are union negotiated enterprise agreements, especially in the retail sector, that provide part-time employees that work additional hours without a range. Without a range, as in some agreements, this section simply encourages, I believe, employers to treat part-time workers like casual workers without the casual loading. The government says the employee can choose not to accept, but I don't think that that view recognises the power imbalance between workers and employers. The government's defence that any additional hours must be by agreement I just don't believe is correct. While I believe this provision potentially has a sensible intent, it does not provide appropriate protection for workers and may likely result in a newer form of lower flexible worker. I cannot support this provision in its current form.
We need to recognise in this place that this bill will affect the lowest-paid workers in Australia more than anyone else. During my discussions with unions and industry, the most contentious element of the bill resoundingly centred around the better off overall test changes. I'm pleased the government has abandoned these changes, but I'm deeply concerned that they were there in the first place. While the government seeks to reform and address obvious areas of deficiency, such as the definition of 'casuals' and wage theft, the bill as a whole does not satisfy the fairness test or satisfactorily address the areas of deficiency.
Given the many elements of the bill that I think are fair and reasonable, I think this government should pull apart this bill in this chamber. If the government is not willing to approach the bill in this way, I simply cannot support it and I will need to leave it to the Senate to hopefully ensure that those provisions for the protection of workers continue, particularly around the area of wage theft. The best thing the government can do, I think, is pause this bill, go back to the table, sit down with unions and sit down with employer groups. Let's actually get a bill that does the right thing by workers and by small businesses.