Glenn Sterle (WA, Australian Labor Party) Share this | Hansard source

I rise to speak to the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006. Regardless of all of the fairy floss we want to put around this bill, it is designed for a couple of reasons that I cannot for the life of me see will aid contractors out there in the workplace. Before I say anything else in contributing to this debate, I do wish to put an angle on this. I am tonight speaking not only as a proud Labor senator for Western Australia but also as an ex-contractor in the transport industry. On that I welcome any commentary from the other side. I am prepared to debate this bill to the end of the sitting week because I think that I can bring angles to this bill. A lot of honourable senators on the other side would not have the same insight into independent or dependent contracting, most certainly not in the transport industry.

This bill is designed to take away any employment relationship between an employer and a subcontractor. It will also take away any ability for contractors to bargain collectively with or without the union. That certainly will have devastating effects upon groups of subcontractors which rely upon third parties to negotiate on their behalf. In the transport industry—more than any other industry, for honourable senators opposite—truck drivers normally do engage third parties like the Transport Workers Union. I think a lot of senators could appreciate that the life of a truck driver is not about sitting around a yard all day waiting to negotiate rates and conditions with an employer. They are actually out in the truck trying to pay off anything up to a $300,000 or $400,000 loan, which normally has the family home tied to it. Also this bill, unfortunately—this is where it really does irk me—will override any state and territory laws.

But I must say from the bottom of my heart that I do support contracting. I think that contracting is a wonderful opportunity for working men and women to use their skills in their chosen fields to improve lifestyles for themselves, their families, their partners, their children or whomever. There have been some rewarding times. I know that from my own experience. I had some fantastically rewarding times through the Western Australian boom in the eighties. That was given to me because I was able to become a contractor with one of the largest transport companies in Western Australia. Why did I and a lot of other contractors—truck drivers in particular—become contractors? I will tell you why—because in the good old days we were engaged by companies under awards that came with all of the good stuff like overtime and penalty rates.

I see that the Government Deputy Whip is having a giggle. You might enlighten me, Senator Parry. You might have been a truckie in your past life too. I welcome your contribution to this debate, although I did notice that your name is not on the speakers list. In fact, I would like to see a lot of honourable senators on the other side putting their names on the speakers list because I would be interested to hear their thoughts on why this bill should go through and what is so darned great about it.

It was the wise men in the accounting departments of the transport firms who thought, ‘What is it costing us to get our freight delivered around the country and how can we do it cheaper?’ That is why contractors evolved in the transport industry. It was because of volatile fuel prices. Also, unfortunately, employees had to be paid wages when they were spending 20 or 24 hours—all day and all night—behind a steering wheel. The only cheaper way was to offer it to the world, get subcontractors in and turn a blind eye to fatigue management, weight restrictions and anything else. Not all companies were like that. Unfortunately, over the years, as margins get tighter, the grubbier element comes to the surface like cream, I suppose—although I would not like to allude to them as cream; they are certainly not cream. But there have been wonderful opportunities in the trucking industry.

I am looking forward to Senator Troeth’s contribution as chair of the Senate Standing Committee on Employment, Workplace Relations and Education. Her good work and the work of the rest of the committee for the outworkers was fantastic. But, Senator Troeth, I think there is one very important part missing. We will get to that.

We had a number of submissions given to us in this fine building on 3 and 4 August this year. But there were a couple of contributions that I certainly have grave concerns about, and I had grave concerns about them at the time, because the mistruths were just mind-boggling. We had the likes of the Australian Chamber of Commerce and Industry. We had the unions putting their side of the story. We even had a group of owner-drivers who came down from Sydney to put their arguments to us. The way it was done was very professional. But there were some shockers. One of the shockers was the Australian Industry Group, represented by Mr Smith. Once we went through the normal questioning and answering procedure, he made a couple of comments. I asked him a question and he did confess something. I would like to quote from the Hansard. Mr Smith from the Australian Industry Group said:

We are not a major player at the present time in the road transport industry but we do have some members in that industry.

I was trying to find out just how many members they did have. What it boiled down to was this—Mr Smith said:

As I have said, our organisation represents thousands of companies—manufacturers, for example—that are extensive users of transport services. They have a legitimate interest in the arrangements in place within the transport industry, particularly if those arrangements have an impact on prices and so on, so I think there is another party that is legitimately involved in this debate.

So there you have it. They want to see this bill come through because they want to keep their prices down. Their members are users of transport. It took a bit of waffling, but we finally got to it. This is what this bill is all about. This bill will certainly not improve the lifestyle of Western Australian owner-drivers in the transport industry or, for that matter, that of Queenslanders or South Australians or owner-drivers from the ACT.

There was another amazing contribution, if I can use those words, from a gentleman who purported to represent a mob called the Independent Contractors Association. Well, well—what an interesting website they have. I will not go on too much about the quality of their submission, but I would like to lead on to some of the replies that Mr Ken Phillips gave. Mr Ken Phillips was questioned by Senator George Campbell as to the make-up of their association, where they had come from and how many people they represented. I will quote some excerpts again if I may. Senator Campbell asked Mr Phillips:

You currently have about a couple of hundred voting members; is that correct?

Mr Phillips said, ‘Yes, we do.’ Then he was asked what fees they paid. He said that they pay a token fee of about $5. That led Senator Campbell to ask:

How many of those members are owner-drivers?

I go to the remarkable answer from Mr Phillips, from the Independent Contractors Association, who is out there screaming from all the tall towers in this country, ‘What a wonderful piece of legislation this will be.’ His response was:

I have never asked. I do not know.

Senator Campbell asked him:

What information do you require when they seek membership?

Mr Phillips answered:

They put in an application. We have a look at it, give them a phone call and have a chat.

He added: ‘Anyway, we haven’t knocked anyone back.’

That interesting crowd, the Independent Contractors Association, espouse to represent owner-driver truck drivers. I think that is absolutely amazing. They do not even know how many damn owner-drivers they represent; they do not even know if they have any owner-drivers! It is not hard to work out that it is just a front for the HR Nicholls Society and also the Australian Chamber of Commerce and Industry. I suggest you go to the website and find out who is who. Once you have paid your $5 you can get that information.

Some positives have come out of the submissions. I know about the good work of the Transport Workers Union in New South Wales and Victoria, under the leadership of the Federal Secretary, Tony Sheldon; the Assistant National Secretary, Mr Michael Kaine; and Miss Naomi Rowe from the New South Wales branch. This place was inundated—as a lot of senators and members would remember, dating back to the change in the balance of numbers within this chamber. Truckies were walking the hallways, knocking on every door that had a handle on it and knocking on doors that did not have handles. They had the opportunity to put their argument forward as to why they did not want to see this bill passed and why they wanted to capture and maintain some of the state conditions and laws that they have in place.

Briefly, those in New South Wales have had contract determination for some 30 years. Contract determination was entered into with the union negotiating for the subcontractors if those subcontractors wanted the unions to negotiate for them—no-one was ever forced into it—but it was also done hand in hand with the major road transport association and employers there. These truck drivers are engaged in myriad sectors within the transport industry: couriers, wharf transport containers, freezers, general, steel and concrete. They have about 170. I know that Senator Hutchins will make a very good contribution about what has been happening in New South Wales. My colleague Senator Hutchins had major input into the conditions of owner-drivers in that state for a number of years prior to becoming a senator. That was done—fine; no worries.

The Victorians have similar legislation. The Victorian legislation is the Owner Drivers and Forestry Contractors Act. The state government in Victoria commissioned the industry to come back with a survey—to do some serious investigating into why so many owner-drivers were going broke in Victoria. It found a wonderful—and I use that term very loosely—list of reasons. The report said that major disadvantages existed and that legislation was required, because the Victorian owner-drivers, like owner-drivers in the rest of this country, are not price setters; they are price takers. They have experienced declining rates over the last decade and increasing business overhead costs; they experience significant periods of unpaid waiting time; they often experience flat or all-in rates that do not compensate for labour, let alone delivering any profit on significant capital investment or reward for risk; they experience a significant information imbalance compared with those who engage them; and they are able to be terminated without notice or with minimal notice but are unable to effectively challenge termination of their contracts on the basis of harshness or unfairness.

As a result of that—with the assistance of the Victorian government; the employer body, the Victorian Road Transport Association; and the Transport Workers Union of Victoria—the inquiry passed the Owner Drivers and Forestry Contractors Act 2005. At the committee hearings on 3 and 4 August there were two very good submissions. One was by the Victorian branch of the Transport Workers Union and the other was by Mr Phil Lovel from the Victorian Road Transport Association. They answered questions and were most upset. They had done a lot of work. I think this work goes back about 10 years. They had been trying to get this legislation up. They were most indignant: how dare the Australian Industry Group, the Australian Chamber of Commerce and Industry and the Independent Contractors Association try and come over the top of not only the Victorians but also the New South Welshman and the Western Australians and say that their state counterparts in Victoria, who had assisted in negotiating this new contractors act, had no idea, no right and should get out of it. What the heck would they know about the transport requirements of owner-drivers and, I might add, companies that engage contractors in Victoria? What would they know? They are the national body, they know better than anyone, and they do not want to see that happen. Those two bodies were most upset that this bill was going to be passed that would override all the hard work that they had done.

In all my years of being engaged in the transport industry, it is not too often that we have actually had both wings of the transport industry—and by that I mean those representing the employers and those representing the owner-drivers—coming hand in hand and saying, ‘Hey, we need assistance from a government,’ let alone had a government that is more than happy to provide that assistance. That is now in place. I will add that, through the hard work of Senator Troeth, those two states will maintain and keep their legislation for now, so the contractors in those states can still be engaged under the two—