Anne McEwen (SA, Australian Labor Party) Share this | Hansard source

I also wish to speak on the Independent Contractors Bill 2006 and the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006. I note also that a substantial number of government amendments to the bills were circulated in this chamber at approximately 4.30 this afternoon—90 minutes before debate commenced on the bills. I note also, like previous speakers, how arrogant and contemptuous it was of the government to drop a large bundle of amendments into the chamber without warning and without even notifying the shadow minister responsible for the bill. It is an attitude of disrespect for the processes of the parliament that we have come to expect from the government, and we particularly expect it when the subject matter of the legislation is protections for working people or attempts to take away those protections. Perhaps some of those government amendments have taken on board some of the concerns of the Senate committee that had a brief time to conduct its inquiry and report on the provisions of both bills. I look forward to further explanation of the government amendments during the committee stage of the debate on these bills.

Together, these bills comprise yet another plank in the government’s agenda to make the Australian labour market a deregulated free-for-all where the vulnerable get exploited and the powerful get away with it. The central principle of both bills is that so-called independent contracting relationships should be recognised and supported and that the appropriate mechanism for regulation is not the industrial relations system but the more legalistic and more expensive commercial law system. The bills add more complexity to an already overly complex industrial relations system. Another intention of the bills is to override the deeming provisions in state laws that were introduced by state governments to allow people who are genuine employees to have an accessible tribunal where they can go to pursue their rights and entitlements.

It is true that the government signalled its intention to introduce legislation along these lines, dealing with independent contractors, prior to the 2004 federal election. However, the Australian public was not clamouring for the independent contractor act before the election, and those of us in the Labor Party cannot actually recall legions of employees begging to be freed from the confines of the employer-employee relationship for the free-wheeling life of self-employment or for life as an independent contractor. In the Labor Party we did, and we do, support people having the genuine choice of either working for themselves or working as an employee. Labor did, and do, support the protection of genuine contractors from unfair contracts. However, the government’s 2004 policy document was a masterpiece of misrepresentation and ideological dream-speak. You know that when a government like this one talks about ‘flexibility of hours’ and ‘freedom to move easily between workplaces’, what it really means is that you will have to work ridiculous hours for no penalty rates and you will have no job security at all, because it believes you should be able to be sacked for no reason at all.

That is what we have seen in the Work Choices legislation, or the ‘no choices’ legislation, and that is the so-called flexibility and freedom this government wants to promote and encourage. These bills encourage a situation where even otherwise well-intentioned business owners and employers are forced to compete against each other, not by improving productivity but by driving down labour costs. It is the same ideology that underpins the so-called Work Choices legislation, the ‘no choices’ legislation. Take away the protections that should be part of the employee-employer relationship and take away the measures that attempt to redress the power imbalance in the employment relationship. Encourage people out of a regulated system into a deregulated system where the only safety net is what you are able to individually extract from the person who pays you.

If you have the skills that are needed by the employer or the organisation seeking to engage your services, and if you have language and savvy to negotiate, you will do okay. If you are not in that position, you will just have to take what you are given. You might get ripped off by whoever is paying you, and you may even have legal redress provided under this legislation. But, if you are a cleaner or a courier driver on a low income, will you really be able to afford to mount a legal challenge? Will you be able to afford the legal fees and, more importantly, if you are self-employed or a contractor, will you be able to take the time off work necessary to pursue such a case?

There are provisions that are intended, I presume, to give people who are subject to unfair contract arrangements the ability to pursue a remedy. But you have to ask: why is it that the government was keen to introduce this legislation at all? Who wanted it? It was not the average Australian working person who, if the legislation is passed, will be at risk of being turfed out of a genuine employment relationship with the benefits and protections that that offers—turfed out of employment because there are no unfair dismissal provisions anymore and forced into so-called contract arrangements.

Who wanted it? It was not those outworkers and owner-drivers who were protected by the state legislation that this federal legislation seeks to override. It was certainly not the TWU, the Transport Workers Union, which, on behalf of its members, put to the former Senate Employment, Workplace Relations and Education Legislation Committee the case for giving owner-drivers the right to be able to bargain collectively and to pursue remedy for unfair contracts in a relatively user-friendly arbitration system. Even some of the government’s own members heeded the TWU submissions and understood that a race to the bottom in the transport industry was going to have devastating effects on safety on our roads, not just for the drivers but also for those of us who share the roads with them.

Who wanted it? So far, the Australian Chamber of Commerce and Industry has been in favour of it, although it did not go far enough in the first take for ACCI. However, in my experience, any legislation that remotely offers any protection at all for working people is probably too much legislation for ACCI. What is the government’s justification for this legislation? The government’s 2004 policy document, which I referred to earlier, is telling in this regard. It states:

The Coalition Government is determined to protect the rights of independent contractors. We will not allow union officials to strip these enterprising Australians of the right to choose how they live and work.

It goes on to say that the government:

... will not permit unions, industrial tribunals or State Labor governments to attack the freedoms of independent contractors.

There you have it—the trifecta: mention unions, industrial tribunals and Labor state governments all in one sentence, then throw in a gratuitous ‘freedom’or two, and that is about the sum total of the government’s justification. Never mind that it was the unions that fought for and won protection from exploitation for owner-drivers and outworkers. Never mind the fact that it was unions and Labor governments that won those protections. The very fact that unions were involved means that those protections must, in the government’s eyes, be bad and therefore, according to the government, we must destroy them and, along the way, do what ACCI wants.

The government says this legislation will be good for small business. You have to ask: how? How will it help those owner-drivers, who are small business people? Labor support Australians who genuinely want to start their own businesses. Labor have already issued our blueprint for small business—our five-point plan to help small business get ahead. Our plans include helping small business to save time and money by cutting down government red tape and by giving them financial assistance to improve their business skills. We know that a lot of people prefer to work for themselves, and we will help them do that successfully. But Labor do not support legislation that encourages sham self-employment or contract arrangements.

This government goes on about the fact that independent contractors are flourishing in the Australian marketplace. We get figures ranging from 700,000 to over a million Australians—or even two million, if you believe the Independent Contractors of Australia. This is presented to us as a good thing, but it completely ignores the long-term outcomes of initiatives that take Australians out of traditional employment relationships, employment relationships that include the provision of industrial benefits such as superannuation. With Australians already undersuperannuated, anything that increases employment which is not accompanied by compulsory superannuation will see too many Australians reach old age or retirement age with insufficient income to sustain a decent lifestyle. Lack of superannuation is just one of the facts of life for too many people working as contractors.

What is the reality of life for many so-called independent contractors? I can give a couple of examples that are within my family. One is that of a courier driver. He provides his own vehicle and of course his own ABN, and his daily routine is to turn up at the workplace of one supplier of medical goods that he has worked for a couple of years. He loads the parcels for delivery and takes them to clients of the supplier. I suppose the flexibility and freedom in this arrangement is that he can decide which route he takes to take to deliver those goods. And, of course, it is the most economical route, because he has to buy his own petrol and the price per parcel delivered has not risen in line with the increase in the price of petrol.

He has no particular issue with the supplier for whom he delivers. They are a reasonable company, a family company, but he does have difficulties with the arrangements under which he works. He is not qualified to do much else except to drive a van and deliver parcels. He is at an age at which it is difficult to train for something else, and there are many other people in his situation. He has to earn a living and the supplier wants to maximise profit, so the courier driver takes what is on offer. But the reality is that he has no sick leave and no annual leave, he has no employer superannuation contribution and he does not earn enough to put enough into self-funded superannuation.

He goes to work when he is sick because he cannot afford to take the day off. He puts off having dental treatment and preventative medical appointments because to take time off work costs money. When his elderly father, who is in an aged care facility, needs assistance or is admitted to hospital and there is no-one else to go with him, the courier driver is obliged to help his parent and loses a day’s pay because of it. If his van is off the road because of a breakdown or regular service, he loses wages because he cannot work or because he has to hire a replacement vehicle. This is not a matter of choosing that kind of income earning arrangement. It is what is on offer when you are relatively low skilled and have to earn an income in competition with others in a similar situation. The government’s 2004 election policy document stated:

They—

independent contractors—

opt for the flexibility of hours, the freedom to move easily between workplaces and, frequently, the higher rates of pay.

Where is the freedom and flexibility for that courier driver?

I have another example. This one involves a much younger person. She is a university student and works in the usual kinds of occupations that students typically seek out when they are looking for an opportunity to earn money to support their studies and pay their HECS debts. In this case, she was offered a job working in hospitality, specifically working on weekends and at nights, waitressing at a function centre where weddings and other events of that nature are held. On accepting the work offer, she was told that she had to have an ABN before she started work because she would be working as a ‘contractor’. An ABN is easy to get via the ATO website. Armed with that, she went along and worked as a waitress. The only difference between this work and working in another establishment, where she would have been called an employee, was the way she was paid and the entitlements she did not get—an amount of money that was not taxed and was not subject to superannuation or penalty rates and that the employer did not have to pay employment related taxes on.

Again, I am not overly critical of the employer. They are about making money and they will use whatever legal framework they legitimately can to maximise their profits. What Labor is concerned about is the misuse of available laws to increase the number of people who are, for all intents and purposes, employees who should be employed under industrial laws but who are called ‘contractors’ so that the employer can avoid the obligations due to employees. Would-be employees need protection; the world of work is not a level playing field. What is an 18-year-old who needs a job supposed to do in this situation? Would they say to the employer, ‘Thanks, but I don’t want to work under those arrangements; I want to be engaged as an employee and paid the award rate and have all the other entitlements and rights of an employee that you are denying me’? Is the 18-year-old going to pursue an unfair contract litigation in a civil court? I do not think so. I think the government needs to get real.

In fact, the government have already acknowledged the potential for abuse of contractor arrangements, because they have taken into account the legitimate concerns raised by unions about particular groups of workers—outworkers and owner-drivers—and accommodated some of those concerns in their legislation. The government attempt to sell this unwarranted and unwanted legislation by saying that it gives people the freedom and flexibility to enter into arrangements of their choice. They already have that choice. No law prevents anyone from working for themselves as a contractor if that is what they want to do—and no-one is saying that that is not the case. Labor supports choice, and it is truly galling to hear those on the other side say that they are promoting choice in this legislation when it is their ‘no choices’ Work Choices legislation that says, ‘Take this AWA or take nothing.’ They have a funny concept of freedom and choice on that side of the chamber.

This is another piece of legislation that is driven by the government’s overwhelming hatred of unions and fairness. It excludes unions from the process of representation for no good reason except this government’s ongoing pathological and pathetic hatred of the notion of working Australians banding together in unions and helping each other improve their bargaining power and working conditions. This is another bit of legislation that will override the states’ legitimate role in providing protection for working Australians. This is another piece of legislation that tilts the balance of power further towards those who already have it and puts those who are most vulnerable at risk of being exploited. It gives me great pleasure to say that Labor opposes these bills.