Monday, 22 March 2021
Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021; Consideration of Senate Message
Last week we saw the humiliation of a tired eight-year old government in the Senate—a government that is in constant chaos, a government without an agenda, a government that's suffering from the way in which it came to office in 2013, eight long years ago, when it ran a campaign against the then Labor government defined by what it was against. It failed to define itself in favour of a reform agenda for the country. After three prime ministers, multiple deputy prime ministers, dozens of ministers, this is a government that really is out of time and out of ideas.
In the Senate last week, we saw the government introduce industrial relations legislation after an extensive consultation process between the trade union movement and employers that didn't reflect the basis of that negotiation. The government sought to entrench insecure work and make it harder for workers to get a pay rise. Instead, what they were left with was a single element which punishes casuals. Why have they done that?
In Queensland, Mr Skene, a miner in Central Queensland, won a case before the courts, which ruled that, indeed, he wasn't really a casual worker; he was a permanent worker because he was given shifts way in advance, 12 months in advance of when he was working. It was just a device to deny him the same conditions as the workers he worked beside. It's been the subject of a very clear principle from this side of the House of same job, same pay. If you're doing the same work, side by side, you should receive the same pay and the same conditions. What this legislation seeks to do is contravene that and entrench the capacity of employers to define as casual those people whose employers are getting all the benefit of permanent work but are not giving those workers the proper conditions like annual leave, sick leave, proper superannuation that come with it. That is what the government is seeking to do. So much for the Gold Coast accountants in the Senate who don the high-vis vest and pretend that they're workers, waiting for the big four accounting companies as they did before, like Senator Canavan.
The fact is that the government did something else that went to the heart of their own lack of morality. They ripped out the wage theft provisions that were supported by everyone in the Senate and in the House of Representatives in an immature, vindictive act of spite. Even after the Prime Minister stood before this House and spoke about wage theft and how important it was, instead of having a separate bill before the House to deal with it, what they did was rip that out. We know wage theft is an incredible scourge that causes a great deal of hardship. It could have been so different if they actually had been constructive.
The tragedy here is that, during the COVID-19 pandemic, the trade union movement and individual workers put aside a whole lot of the hard-fought conditions in order to keep businesses going, in order to be constructive. The model was there. And what was the payback for those workers? This tardy piece of cheap legislation to undermine wages and conditions, at a time when the Reserve Bank is making it very clear that it is the undermining of wages that is holding back our national economy. This farce should be voted against, and Labor will be doing just that.
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).
[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)).
(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)).
[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)
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,".
This government wants to make insecure work worse. We already know that insecure work in this country is at crisis point. Insecure work makes it harder to plan your life, because you don't know whether you're going to be working on any particular day or not. It can make it harder to plan a family. We've heard from worker after worker in the inquiries in this place who say, 'I just didn't know whether I could start a family or get a house of my own, because I just wasn't guaranteed a job next year, next month or the day after next.' It makes it really hard to do basic things that many of us used to take for granted, like get a roof over our heads.
The cost of affording a house at the moment is through the roof. If you can find a place to rent near where you work, you're lucky. If you are looking for a place to buy, you know you'll be priced out of the market because the government keeps giving billions of dollars a year in subsidies to people who've already got two, three or four houses. But, if you are looking for a place to buy, and you go to the bank manager to try and get a mortgage, if you are on a form of insecure work, it makes it that much harder.
What is this government trying to do? Instead of outlawing insecure work and instead of saying, 'Insecure work is getting worse in this country, and we've got to tackle it', they've brought a bill to this place that would help spread insecure work like wildfire. How would it do that? The bill that we're being asked to agree to hear would basically give the employer the right to determine whether you're a casual or not and decide it even if you're not. In other words, you could be someone who's actually a part time worker or even potentially a full-time worker, but, if the employer decides it's in their interest to call you a casual, your opportunity to appeal against that is taken away. In other words, this is going to put a legal stamp on some widespread forms of insecure work and exploitation that exists in this country.
The government, under pressure from the Greens, Labor—almost all of the Senate—and unions, was forced to gut some of the other terrible provisions from this bill. Those provisions would have allowed, for example, full-time workers and even part-time workers to be put on a new form of contract that we might as well effectively call permanent casual. Under the new form of contract that the government wanted to get through but was forced to back down on in this bill, you'd have been guaranteed maybe only a minimum of 16 hours a week and your employer would have been able to move you up or down, so you would have had next to no certainty over your working lives and it would have been the end of full-time, secure, ongoing employment as we know it. It would have introduced a new kind of contract into the Australian industrial relations system. Working together, working with the community, people across the political spectrum managed to get the government to ditch that, but this government is so petulant that they also said, 'If we can't have all the nasty things that we've been trying for years to get through and we're now going to use the pandemic as an excuse to pursue, then we're going to take even the good things, like cracking down on wage theft, out of the bill as well.' So what are we left with in this bill? After the government dummy spits, we're left with only a provision that will entrench insecure work in this country by allowing employers to say that you're a casual, even if you're not. If you want to go to court and complain about it, bad luck. If you want to go to the Fair Work Commission and complain about it, bad luck. This comes after we have seen, year after year after year, people come to this place saying, 'My life is getting harder, because insecure work is getting worse in this country.' We have an obligation in this place to stand up for decent work and decent conditions.
The amendments being moved by the opposition are good amendments and will put back in some of the good bits that the government has taken out, but the provision that the government is asking us to sign up to is one that does nothing more than entrench insecure work in this country. We want to outlaw insecure work, so that's why the government's approach must be opposed.
I want to take the opportunity in this debate to talk about the real impact that this legislation, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021, is having and the government's approach to industrial relations.
The real impact hit home to me two weeks ago when I, along with the shadow minister and the member for Hotham, attended the McCormick's site in the member for Hotham's electorate in the south-eastern suburbs of Melbourne. There we met with people on the picket line of the United Workers Union. There we met workers who have worked on that site for decades—workers who work day shift and night shift, largely from migrant backgrounds, who have come to Australia for a better life for themselves and their families. Do you know what? They have not had a pay increase for five years—in five years, not a dollar! They are working there to provide products that everyday Australians can enjoy. They produce the gravy that goes to KFC. They produce some of the sauces that go to McDonald's and Hungry Jack's. Those workers proudly produce a range of products in the member for Hotham's electorate.
These men and women are working hard each and every day, and their patience has run out. It's not surprising because the deal that the company has on the table is again for zero dollars, unless they give up more conditions as part of the changes that the company wants. That's because the company knows that the government is on their side, not on the workers' side. I was there with the member for Hotham and the shadow minister, the member for Watson, to say to those workers, 'We are on your side.' I committed to those workers on that day that I would raise their issues in this parliament on their behalf. I make this pledge on behalf of the Australian Labor Party that we want to see wages increase for working people; that we understand that that is good for our economy; that we want more secure work, not less secure work, as is provided for in this legislation; that we do want to outlaw wage theft; and that we do want to address the existing power imbalance.
But this government is pursuing this mean-spirited legislation that is bad not only for individual workers but for all workers. This government says that, if we address insecure work, it's complicated to pay people the minimum wage of $19.84 an hour. I launched a report at the Labour Council of New South Wales last Friday. There, I met Mr Wong, a person who has worked on farms and who has come to Australia from the Mongolian province of China for a better life. He came here because he thought that Australia was the land of the fair go, where he would be treated decently. What we have in this country is people across a range of industries not even being paid the minimum wage. That's not complicated. What a lost opportunity—an industrial relations omnibus bill which should have made work more secure and which should have provided for increased wages and increased good outcomes for business as well. We actually had last week an extraordinary press conference with Mr Strong from COSBOA and the Secretary of the ACTU, Sally McManus, saying we have agreed on what's good for small business and good for workers, yet this government rejects all of that for this narrow, mean-spirited, vindictive, childish, petulant legislation that is before us today.