Wednesday, 24 October 2018
Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018; Second Reading
When I was speaking previously, I cited a couple of examples where the employees, workers in my electorate, had been done out of their entitlements. I spoke about the Fair Entitlements Guarantee and welcomed the increases in penalties for those companies that deliberately try and do their employees out of their entitlements.
At the moment, the penalties are minor, it must be said, in comparison to the monetary amount many of these individuals and body corporates are squirrelling away into complicated mechanisms. The current penalty is 10 years imprisonment or 1,000 penalty units, which equates to about $210,000. As I said, I welcome the new penalties, which for an individual are imprisonment for 10 years or a fine of the greater of the following: 4,500 penalty units, which equates to about $945,000, or three times the total value of the benefits obtained by committing that offence, or both. For a body corporate, a fine of the greatest of the following: 45,000 penalty units or about $9.45 million; three times the total value of the benefits obtained by committing of that offence; or 10 per cent of the body corporate's annual turnover during the 12 months before the body corporate committed, or began committing, that offence. So we agree, as I alluded to previously, that these substantial increases in penalties will, hopefully, reinforce the serious nature of these crimes and will also act as a substantial deterrent for persons who may otherwise seek to engage in these types of evasive behaviours. It's also the case that the civil penalty provision will make it easier to hold those directors and companies liable for avoiding liability for the entitlements that are owed to those employees.
No-one should ever forget that when it comes to the Fair Entitlements Guarantee that this government's primary motivation is to reduce the fiscal cost to the Commonwealth, rather than any true commitment to protecting worker entitlements. As the guardians of workers' rights in this nation Labor will do whatever it takes to protect the Fair Entitlements Guarantee, as it is essential to providing a safety net for Australians.
We've seen with penalty rate cuts, and other initiatives from those opposite, that cuts to the rights of workers in this country, unfortunately, are in this government's DNA. We saw it with WorkChoices back in the times of former Prime Minister John Howard. We see it in this divided party and that is, unfortunately, one of the very few things that unite the conservative forces in this country and that's attacking workers' rights.
Under this government wages are stagnant, and even the business community is starting to be worried about that. Underemployment is stubbornly high, worker exploitation is rife and work in our nation is increasingly insecure. That's not good for Australian families and that's not good for the Australian economy. While these reforms that I have spoken about today, and other speakers have spoken to, will strengthen the legal regime to punish and deter those dodgy employers and companies they are only a start. We need to do more.
In the end, we support the premise and intent of this bill, as we see it. It will benefit employees, and as an extension of that the taxpayers who will have their valuable funds returned to them. There is a growing concern amongst workers in our nation that the federal government has not got their back. That they have been too keen to make sure that the top end of town is looked after, rather than those workers out in our nation who provide for their families and are what makes our country tick. It is the workers of our nation who really need to be supported. It is, obviously, the small- and medium-sized businesses as well that generate employment in our country. We recognise that, but we also recognise that strengthening the penalties for when people—people in positions of power and people in positions of great wealth and influence—take the opportunity to screw their workers out of the entitlements that they're owed it's not good. That is why the Fair Entitlements Guarantee was formed, to ensure that those workers aren't left behind, but we need to strengthen these penalties and, as I have outlined, hopefully, these penalties will send a strong message to those who would seek to subvert what those workers are entitled to. I welcome the bill.
I support the passage of this bill. I would like to read out the title of this bill: Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018. That's the thing, the amendments to this bill are about employee entitlements. In particular, I believe that the strengthening should include superannuation. It is incredibly important for employees to be able to recover superannuation, through the Fair Entitlements Guarantee, where their employer has become insolvent. Sadly, there have been many cases in my electorate where employees have been left out of pocket substantially, particularly with respect to superannuation.
The Fair Entitlements Guarantee is a very valuable and necessary scheme that activates on behalf of an employee when their employer goes insolvent, providing access to up to 13 weeks of unpaid wages, unpaid annual leave, long service leave and other benefits beside. However, the guarantee needs to be strengthened further, because there is one huge blind spot, as I have just mentioned: unpaid superannuation.
I have spoken multiple times in this place on the scourge of unpaid superannuation to employees by unscrupulous employers. The Australian Taxation Office estimates that Australian workers are victim to almost $2.85 billion of unpaid super each and every year. Those employers are robbing not just the employees but also all Australian taxpayers, because they are leaving people without the opportunity to have a decent super to retire on, and therefore they will be entirely reliant on the pension.
Mr Deputy Speaker, this is not good enough. The government needs to do more to protect both employees and the businesses that are doing the right thing. My second reading amendment calls upon the government to amend the Fair Entitlements Guarantee to align access to unpaid superannuation with claimable unpaid wages. Now, government says, 'Oh, this is a huge cost!' Well, last time I looked, we're talking about just over 9 per cent, and we are talking, fortunately, about a small proportion of Australians in this circumstance. It is small, but I think it is an important step to address the blight on the future of Australian retirees and, ultimately, the public purse that unpaid superannuation presents.
Really, this is about sending a message that superannuation is important. If we don't include it in here; if we don't see it as an employee entitlement; and if we just see it as a nice, little added extra that most employers pay, then we are losing the whole point of what superannuation is supposed to be. I formally move the amendment as circulated in my name:
That all words after "the House" be omitted with a view to substituting the following words:
"calls on the Government to consider amending the Fair Entitlements Guarantee to include up to 13 weeks of superannuation guarantee contributions, to align it with claimable unpaid wages".
The original question was that this bill be now read a second time. To this, the honourable member for Gorton moved as an amendment that all words after 'That' be omitted with the view to substituting other words. The honourable member for Mayo has now moved as an amendment to that amendment that all words after 'the House' be omitted with a view to substituting other words. The question now is that the amendment moved by the honourable member for Mayo to the amendment moved by the member for Gorton be agreed to.
In rising on this, the Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018, it is with deep regret. When I moved from the state parliament to the federal parliament, I realised that in this place the minister is not sitting at the dispatch box when legislation comes forward and the head of the department is not here. So, we talk, but we talk into an empty brass cylinder. The people that we want to get through to, the minister and, probably more importantly, the head of the department, should have to sit in this place and cop it for their incompetence, or be praised for their excellent work. In this place, they hide out in their ivory towers, both the minister and the head of the department, so we can't get at them.
If ever there was a trail of destruction in this country—and I don't wish to have a go at Clive Palmer, because I have no idea of the rights and wrongs of this case or how he was involved. All I know is that the company that owned the nickel plant did not pay workers and they did not pay suppliers. Hundreds of millions of dollars was not paid. That was a big case.
The Kagara zinc case—we were having lunch discussing it with an investigative journalist from The Sydney Morning Herald in a cafe in Sydney. The lady waiting on our table was a schoolteacher, but she had to work at a cafe as well to meet the debts she had because she was told that 'these were good investments'. One of those investments was Kagara Zinc. She was just a little schoolteacher in Sydney and she lost $25,000, which to her was a king's ransom. She picked up the word 'Kagara' from our conversation and she said, 'Is there any chance of us getting our money back?' In that case, four members of the board said: 'This company is in deep trouble. We had better put it in the hands of a liquidator.' They chose the liquidator. The liquidator sold the assets back to the four of them—I am exaggerating but only slightly—so half the board owned these assets afterwards but with no debt. They had written off $1,000 million worth of debt! These people they owed money too were ordinary little contractors—electrical contractors and engineering companies; there were hundreds of these little people—and also the employees. If it doesn't raise a red flag when the people on the board sell the assets themselves, shorn of the debt, then I don't know when you would raise a red flag.
I can go into case after case. I remember one case in Mount Isa 20 years ago which was worth $3½ million dollars. It was the third time the company had gone broke. When I say the company had gone broke, the principal of the company hadn't gone broke at all—he was as rich as Croesus—but, of course, he never paid anyone in Mount Isa. In this case, most of those jobs were government jobs. The government, before they pay the contractor, surely has a responsibility to ensure that the subbies have been paid. This is hardly an onerous obligation to say: 'Before I write you a cheque for a million bucks, mate, I want the names of all of your subbies—it's a criminal act not to give them to me—and I want a statement from them that they have been fully paid.' It is a very simple device. Four governments in a row came in in Queensland and said, 'We're going to address this problem.' But it is still not addressed.
We are talking here about protecting superannuation, and I support the member for Mayo's amendment here and will vote for it. I do wish that people, when they are moving amendments, would know what they are moving and why. It is hard for us to make decisions without knowing what the hell is going on. The thousands of workers in the Kennedy electorate that have not got paid—those standards remind them of the incompetence of several successive state and federal governments. The unions, in some cases, have been very lax—they have never fought the fight as it needed to be fought—and some unions have been very good insofar as they have fought those battles.
Going specifically to superannuation, I had an agency and, mostly, I sold superannuation through that agency. I could, with great pleasure, sell that agency in the knowledge that 60 per cent of that money that went into superannuation went into government securities by law. There was a 60-40 rule. Sixty per cent of all superannuation went into government securities—as safe as a house. They can be nothing safer than government securities.
Now, 51 per cent of all superannuation is going on the stock market. Go down to the TAB! The stock market—this is a secure investment? The Australian stock market has collapsed three times in the last 30 years, and I mean serious collapse. Too bad for you if you retired during that period of time. Twenty-six per cent is going on the Australian stock market and 25 per cent is going on the American stock market. If you're telling me that a fund manager, who is pretty typically under 30 years of age, is going to be able to tell you what is a good investment on the American stock market, well, I'm not going to believe you. My wife and I own a couple of old superannuation policies. I'm trying to get out of the superannuation arrangements because I consider 51 per cent very, very insecure indeed. Another 25 per cent's going on the property market. The property market in Australia—that's a solid investment? Heavens! The average price of a house in Newcastle, Sydney and Wollongong is $800,000. Everyone knows that that can't be sustained. So, when you say you've invested in property in Australia, let's get really scared here. Let's get really scared.
Our superannuation is simply not secure. The wise people that ran Australia for 120 years in this place said 60 per cent of that money goes into securities. So you can't play games with it—your stock market games and your property games. You can't play games with it, like Goldman Sachs and Enron and these people did in the United States. We're going to see that it's rock-solid—it's in government securities. And I, as a humble little bloke selling superannuation, could say to these people, 'Mate, this is a really solid investment.' The irony is it's an AMP agency. They were rock-solid. I was very proud to be associated with that company—a very, very conservative, very prudential company. They joined the Johnny-come-latelies: 'Make the big bucks real quick and don't worry too much about tomorrow, because I won't be the CEO tomorrow.'
Before I conclude my remarks today, I will say that I remember reading an article by a very famous Australian—probably one of the most powerful people in the nation's history—a bloke called Bob Santamaria. He had a column in The Australian newspaper. He wrote in that column that the superannuation funds of Australia were being invested by fund managers who were in their 30s. They were investing hundreds of millions of dollars and they were being paid millions of dollars a year. I read that and I thought, 'This bloke Santamaria's lost his marbles! I mean, this is ridiculous—outlandish, extremist rubbish,' and I stopped reading his column. Two years later, Nick—I'm trying to remember his second name—brought down Barings Bank, the oldest bank in the world. He brought it down, and Santamaria was wrong: he wasn't in his 30s; he was in his 20s. He was not being paid a million dollars—Santamaria was wrong; he was being paid tens of millions of dollars a year. He wasn't investing hundreds of millions of dollars, as Santamaria said; he was investing thousands of millions of dollars. This rogue brought down Barings Bank.
Barings Bank was brought down, and two of the biggest banks in the world were bought down during the GFC, in a market that everyone knew was collapsing—the American housing market. Many made billions of dollars short-selling because they could see what was coming. We did not get caught in Australia, and the banks went around congratulating themselves. The only reason we didn't get caught is that Australia is one of the few countries on earth where the banks have recourse lending.
If, in America, you can't make the payments on your house, you jingle-mail—send the keys to the bank—and you walk away with no debt. In Australia, you don't; you walk away with debt that the bank can pursue you for till the day that you die. That debt stays in place till the day that you die. So you become a debt slave to the bank, with all their charges and the murderous, punitive interest rates that they apply in these situations, and you carry the debt for the rest of your life. In America, the debt terminates. You lose your house and all the money you put into it, but the bank loses because they have to sell the house and it's not worth what it was originally worth. So the bank shares the loss, and so they should.
When I was at an agency and I was selling investments, if we sold to people that did not keep up that contract, we lost the agency. There was prudential oversight by what were called insurance companies—AMP, CML and MLC in those days. If there were rogue traders, if someone like me went rogue, once people were found not to be keeping up their payments—you had made bad contracts—then you lost the agency, and so you should. Now we have rogue traders everywhere in superannuation and banking. As for prudential oversight, what a joke.
Look at ASIC. There was a sugar mill sold by liquidators for $2 million. A sugar mill is $100 per tonne. If it's a 200-tonne mill, it's $200 million—it must be a million dollars a tonne. A two million tonne mill at $100 a tonne is $200 million. So a $200 million sugar mill was sold out from under the farmers for $2 million. I think we met with ASIC officials 17 times before we went to the then Treasurer, Wayne Swan. He had his people check up on the case, and he was horrified that ASIC, a government body, had done absolutely nothing about this appalling piece of thievery that had taken place. And I use that word 'thievery' because those people got huge benefits for doing the dirty on the poor farmers. The Treasurer ordered ASIC to meet with his people. There was no satisfaction, so Wayne Swan ordered them to meet again, because he was absolutely disgusted with their behaviour. Then the government changed. Mr Hockey came in as Treasurer. He had a look at this case and he was shocked. He ordered ASIC to meet with his people. Nothing happened, so he was very enraged and he ordered ASIC to meet again. That's two treasurers, and ASIC treated them both with contempt. ASIC knew the mill had been sold out from under us for $200 million. They knew the 30 pieces of silver that the decision-makers had got out of the dirty, filthy deal.
So we went and did it ourselves. We could only get 39 of the 230 farmers to put up the money. So there were only 39 farmers, and we got a settlement out of court for $23 million. Those incompetents will burn in hell—because I do believe there is a hell, and they're going to be punished somewhere. They sure ain't going to be punished by this place, but they will be punished later on. They got away with their thievery and roguery. They got away with tens of millions of dollars at the expense of the farmers. Were we right? Of course we were right. (Time expired)
I speak in support of the amendment moved by the member for Gorton with respect to the Corporations Amendment (Strengthening Protections for Employee Entitlements) Bill 2018. This is a matter that I have spoken about previously in this place—in particular, when I was making comments about phoenixing and what happens when businesses, often deliberately, go bankrupt in order not to meet their financial obligations to others, and then the operators of those businesses move on to a new business—quite often in the same line of business but simply under a new trading name—and establish, once again, the same cycle of deceiving others and, effectively, taking their money. This legislation implements greater protections for people who lose their entitlements when such a person becomes bankrupt. Therefore, if there are greater protections, it is something that we on this side of the House will support.
In particular, the legislation targets those who deliberately structure their businesses and financial affairs so that they avoid their obligations to their hardworking employees whilst, at the same time, transferring assets out of the business before it goes into liquidation. I stress the word 'before' because, quite often, the people who operate these shonky businesses know exactly what is likely to happen in the months ahead and then quite clearly and deliberately restructure and resell their assets prior to the business going into liquidation. Even worse, they quite often sell them at discounted rates either to a friend or family member or to an entity that they themselves have an interest in. They effectively keep the assets and leave the company bone-dry in terms of its responsibility to other creditors.
This legislation also makes it easier to prove a criminal offence when this occurs, and it increases the penalties for those offences. The legislation also introduces a new civil penalty for avoiding paying employee entitlements and gives the Fair Work Ombudsman, the Australian Tax Office and the Department of Jobs and Small Business powers to pursue the funds owing to those employees. ASIC's powers are also extended. The legislation also gives ASIC the power to disqualify directors and other officeholders where they have a track record of corporate contraventions. I think that that is a good move. It's about time we did that. Someone who has a track record of being what I would refer to as a shonky operator shouldn't be entitled to re-register and have the opportunity to do it again. As I say, all of those measures are welcomed by this side of the House. However, I suspect that the changes are more so motivated by the government's attempt to reduce its obligations—that is, its financial obligations—that arise through the Fair Entitlements Guarantee than through its concern for workers. But whatever the reason, the legislation is welcome.
I point out that, in terms of where we are at with the Fair Entitlements Guarantee payments, between 2005 and 2009 there was about $70.7 million paid out. That figure rose to $253 million between 2014 and 2018. Clearly, the figure is on the rise. It's not on the rise because workers are getting paid more. As we know, wages have effectively stagnated. It's on the rise because perhaps more businesses are going bankrupt or more businesses are deliberately going bankrupt. That is of real concern because, as we all know, working people in this country are struggling enough as it is with the cost of living. To then suddenly find that your employer has gone bankrupt and you will not be entitled to your wages, let alone to your long-service leave and other entitlements that you might have otherwise expected, is particularly galling. It is certainly galling for employees who have been there sometimes for years, put their heart and soul into their work and supported the employer.
I have no problem with supporting those workers. When the Fair Entitlement Guarantee was brought in, it was a good move because at least it provided some opportunity to get people the entitlements that they had earned. I understand that last year there were some 7,700 corporate bankruptcies in Australia. The Fair Entitlement Guarantee, over the same period, paid out almost $165 million to some 10,822 claimants. Of those payments under the Fair Entitlement Guarantee, $39 million was recovered from liquidated companies. The rest had to come from the fund—that is, a fund that is underwritten by the Australian government and the Australian people.
However, there is another aspect to this that I wish to touch on when we talk about liquidated companies, because it's not just the employees of the business who may suffer when their employees go bankrupt. Quite often, it is other businesses who are also owed considerable amounts of money—other businesses, subcontractors, the tax office itself, and other government entities might all lose out when a business goes into liquidation. The flow-on consequences when a company goes broke stretch far and wide. Indeed, I suspect that, quite often, when one company falls, it causes the fall of a series of other companies.
I refer to one particular company that I have some familiarity with. The owner of that company contacted me only a few months ago. The Adelaide company was dealing a company interstate which went into receivership. The first question was, 'Did it really need to go into receivership?'—because there are doubts as to whether it should have. But when it did, the Adelaide company was left owed $1.7 million. It's a substantial amount of money. For that company, the $1.7 million debt could have brought about its own downfall—and nearly did. And that would have meant that its operations—which extend across Australia; a company that employs about 50 people—would have also gone into bankruptcy. Fortunately, it was able to prevent itself from going into bankruptcy and the company is still trading and, I understand, is still able to continue to operate in South Australia with the full workforce that it had before it was left with the $1.7 million of debt.
Some matters arise from the experience of this company that are worth bringing to the attention of this House—that is, that the company that owed the $1.7 million was then put into liquidation. Two matters arose from that. There was an attempt by the Adelaide company to retrieve some of its outstanding money, and, to do that, the company had to engage lawyers. The cost of the legal expenses that the Adelaide company incurred was enormous. The first matter was that there seemed to be an unfair situation where this company, in order to try and retrieve its outstanding money, had to engage lawyers, which cost a huge sum of money. But even worse was that, when the company went into liquidation, the liquidator was able to secure funds for the liquidation and for the liquidators' entity but, effectively, left nothing for the creditors.
We need to look at how liquidation in this country actually occurs, because I suspect two things are happening. The first is that liquidators are charging unreasonable amounts for the work they do. And by doing that they are prepared to keep money for themselves whilst others who are owed money lose out. But secondly, in dealing with liquidation, my understanding is that often assets are liquidated at below market value, in what could be referred to as a fire sale, which sometimes is unnecessary, and perhaps a better rate of return could be made for those assets. That, in turn, would leave more money for the liquidator to pay the outstanding creditors, who are quite often people who cannot afford lawyers and who have no other way of getting their money back. Whilst I appreciate that this legislation goes a long way to supporting workers in this country who are entitled to their wages and so on when a company goes into liquidation, I believe we should also look at the effect of liquidation on other companies and the impact it has on them—because ultimately, they also lose out, and that means workers also lose out because of it.
To wrap up my comments on this, looking at the issues of additional penalties, new penalties, and making it easier to penalise those people who deliberately breach the law and deliberately engage in activities which ultimately result in workers losing their entitlements is something that is long overdue. I would like to think that we don't just pass legislation in this place but also adequately resource the ATO, ASIC and others to do their jobs, to ensure that this doesn't happen as much as it has been to date.