House debates

Monday, 22 March 2021


Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021; Consideration of Senate Message

11:54 am

Photo of Mr Tony BurkeMr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | Hansard source

Eight long years and what have the government come back with? What we have in front of us now has nothing to do with the working group process that took place. What we have in front of us right now has nothing to do with anything about post-COVID reform, nothing at all. What we have in front of us is the same old ideological wish list that this government always believed in and just put in the back drawer for a long time.

What was the point? Remember all the stories about the new accord and how the Prime Minister believed he was going to be the next Bob Hawke? They had the unions turn up in good faith, and people sat down and they had all the working group meetings. There was a walk-out during it, when different factions of the business community walked out when they got upset that there was an agreement between the ACTU and the BCA to get enterprise agreements going. But whenever there was a hint of consensus, the government didn't want anything to do with that, and they ended up with a piece of legislation that had nothing at all to do with the working group process. Then, when the bill appeared, the bill in its first form had a wage cut that was available—the better off overall test gone—for the next two years, for agreements that would then last a further two years. That is four years where wage cuts were to be legitimised. That was the government's response when they decided to completely ignore the working group process.

Now, after the process that's happened in the Senate, we've ended up with a bill that does two things. It promotes casualisation and it legitimises wage theft. That's what we've got. We've got in front of us right now legislation that is about two things. On the promoting of casualisation, an agreement came up last week between the ACTU and COSBOA, and amendments were moved. Those opposite should never come into this chamber again and pretend that they are friends of small business or pretend that in some way their approach to industrial relations is driven by a concern about small business. What they did last week—and if they vote for the bill in its current form in the division that's coming up, what they're about to do now—is reject the requests of the small business lobby on industrial relations. That's exactly what's in front of them right now.

We moved those amendments, and then the government decided, 'Nup, you can't have any of that', and then we successfully got some other sections out of the bill. Then an eight-year-old government did something that you would expect from an eight-year-old: they had a tantrum. They said, 'If you're not going to let us cut workers' pay, then we won't criminalise wage theft.' That was their decision: that if they don't get to cut pay, they won't criminalise wage theft. For all the questions that have come across the chamber over the past more than 12 months—about 7-Eleven, about the hospitality industry, about retail, about example after example where people had their wages stolen—we were told, before the pandemic, that they would act on wage theft. It was announced on 18 February 2020 that the legislation to criminalise wage theft was coming in the coming weeks.

What happened when they finally had the legislation before them in the Senate, which they had said they would bring in? They moved to delete it. They moved to delete their own section of the legislation, even though originally none of this other stuff was attached to it. They then became so committed to the cutting of wages, so committed to making sure people didn't have to know what was in their enterprise agreement when they were voting, and so committed to eight-year greenfields agreements without a pay rise that they ended up saying, 'Well, if we can't have our toys, we won't act on wage theft.'

So, I'm moving amendments that bring those wage-theft provisions back into this bill. They do two things. They bring back those provisions, and they make sure that we act on the criminalisation of wage theft. I move the amendments that have been circulated in my name:

[instead of Senate amendment(10):

(1)   Schedule 1, item 2, page 4 (line 9) to page 5 (line 18), omit section15A, substitute:

15A Meaning of casual employee

  (1)   A person is a casual employee of an employer if the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person.

  (2)   For the purposes of subsection (1), in determining whether the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person, regard must be had to the following considerations:

  (a)   whether the employer can elect to offer work and whether the person can elect to accept or reject work;

  (b)   whether the person will work only as required;

  (c)   whether the employment is described as casual employment;

  (d)   whether the person will be entitled to a casual loading or a specific rate of pay payable only to casual employees under the terms of a fair work instrument;

  (e)   the pattern of hours that is worked, or scheduled by the employer to be worked, by the person.

Note:   Under Division 4A of Part 2-2, a casual employee who has worked for an employer for at least 12 months and has, during at least the last 6 months of that time, worked a regular pattern of hours on an ongoing basis may be entitled to be offered, or request, conversion to full-time employment or part-time employment.

  (3)   To avoid doubt, regard may also be had to considerations other than those referred to in subsection (2).

[casual employees—definition]

[instead of Senate amendment (11):

(2)   Schedule 1, item 3, page 12 (line 28) to page 13 (line 10), omit subsections 66M(1) and (2), substitute:

Application of this section

  (1)   This section applies to a dispute between an employer and employee about either or both of the following:

  (a)   whether or not an employee is a casual employee as defined in section 15A;

  (b)   the operation of this Division.

  (2)   However, this section does not apply in relation to the dispute if:

  (a)   a fair work instrument that applies to the employee includes a term that provides a procedure for dealing with the dispute; and

  (b)   that term provides either party with access to the arbitration of any dispute about the operation of this Division by the FWC.

Note:   Modern awards and enterprise agreements must include a term that provides a procedure for settling disputes in relation to the National Employment Standards (see paragraph 146(b) and subsection 186(6)).

[casual employees—disputes]

(3)   Schedule 1, item 3, page 13 (lines 18 to 26), omit subsection 66M(5), substitute:

  (5)   If a dispute is referred under subsection (4):

  (a)   the FWC must deal with the dispute (other than by arbitration); and

  (b)   where the dispute is unable to be resolved under paragraph (a), the FWC must deal with the dispute by arbitration.

Note:   For the purposes of paragraph (a), the FWC may deal with the dispute as it considers appropriate, including by mediation, conciliation, making a recommendation or expressing an opinion (see subsection 595(2)).

[casual employees—disputes]

[instead of Senate amendment (20):

(4)   Schedule 5, item 4, page 68 (line 4), omit "Subject to subsection (3A), the", substitute "The".

[compliance and enforcement—civil penalties]

(5)   Schedule 5, item 4, page 68 (lines 9 to 12), omit subsection 546(3A).

[compliance and enforcement—civil penalties]

(6)   Schedule 5, item 10, page 74 (lines 22 to 26), omit subsection 548D(7).

[compliance and enforcement—small claims procedure]

(7)   Schedule 5, page 75 (after line 15), after item 10, insert:

10A At the end of section 557C


  (4)   To avoid doubt, a reference to proceedings relating to a contravention by an employer of a civil remedy provision in paragraph (1)(a) includes proceedings dealt with as small claims proceedings under section 548.

[compliance and enforcement—presumption in small claims proceedings]

(8)   Schedule 5, page 82 (before line 3), before item 36, insert:

36A Subsection 357(1)

Omit "(1)".

36B Subsection 357(1) (note)

Omit "subsection", substitute "section".

36C Subsection 357(2)

Repeal the subsection.

[compliance and enforcement—sham arrangements]

(9)   Schedule 5, item 39, page 82 (lines 9 and 10), omit the item, substitute:

39 Subsection 539(2) (before table item 12)


[compliance and enforcement—sham arrangements]

[instead of Senate amendment (22):

(10)   Schedule 5, items 43 and 44, page 84 (lines 15 to 29), omit the items, substitute:

43 After subsection 27(1A)


  (1B)   Section 26 does not apply to:

  (a)   a law of a State or Territory providing for an employer, or an officer, employee or agent of an employer, to be liable to be prosecuted for an offence relating to underpaying an employee an amount payable to the employee in relation to the performance of work; or

  (b)   a law of a State or Territory providing for an employer, or an officer, employee or agent of an employer, to be liable to be prosecuted for an offence relating to an employee record that is required to be made or kept by the employer under this Act (such as an offence for failing to make or keep such a record or making or keeping a false or misleading record).

[compliance and enforcement—criminalising underpayments]

(11)   Schedule 7, item 1, page 94 (line 18) to page 95 (line 10), omit subclauses 46(1) to (4).

[casual employees—application of definition]

(12)   Schedule 7, item 1, page 95 (after line 19), after subclause 46(7), insert:

  (7A)   However, despite subclause (7), section 545A of the amended Act does not apply in relation to entitlements that accrue, or loading amounts paid, before commencement if an application has been made before commencement to a court for the court to determine a claim in respect of the entitlements or amounts.

[casual employees—retrospective application]

(13)   Schedule 7, item 1, page 95 (line 29), omit "before,".

[casual employees—retrospective application]

(14)   Schedule 7, item 1, page 95 (line 32), omit "before,".


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