Tony Sheldon (NSW, Australian Labor Party) Share this | Hansard source

I'm very pleased to talk on the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021. Before I do that, Senator Small, I appreciate that you've given an outline of what's happening in the gig economy, but I'd like to give an outline from this morning at 11.30. After a series of strikes by Hungry Panda workers—the first strike was because they were not getting paid the minimum wage and the company effectively had taken a third of their income from them—the company's response was to terminate a number of people who had held meetings to talk about the abuse they were receiving at the hands of the company. They had no commission to go to and they had no workers comp arrangements for when they were injured—and a number of their colleagues had been killed or injured. You're saying that somehow these people have a capacity under our system to earn a higher income and, by having regulation, we're holding them back. No, your proposal is killing them. I say this quite clearly in opposing the bill, with the rest of my colleagues.

Since the beginning of this pandemic, Labor has set a consistent test for legislation proposed by this government: will it create good, secure, well-paying jobs? It was to protect these jobs that Labor supported the JobKeeper wage subsidy, a program intended to keep workers connected to their employers. But, cruelly, the government's implementation of the program excluded thousands of workers at dnata and did nothing to stop Qantas outsourcing thousands of others. Despite this bill's title, the bill includes not a single provision that would create secure jobs, increase wages or enable Australia to recover from the economic consequences of COVID-19. Instead, this bill will prolong the worst, most debilitating aspects of Australia's economic landscape by further entrenching insecure work. It will cripple already sluggish wage growth and, by watering down existing laws in Victoria and Queensland, it will fail to deter rampant wage theft.

The economics of this bill are simply bad, which makes this bill so exceptional, because the economics of recovery are abundantly clear. We know that the labour market is the foundation of the economy. When the foundation is weak and insecure, so too is the economy. When workers are underpaid, they spend less, and demand goes down. When they have no choice but insecure employment, they don't spend. When they have few rights and are forced to accept lower pay and lower conditions, consumer confidence is undermined. Instead, what we need are quality jobs, secure employment and fair pay. These are the conditions of a strong labour market, one that provides consumers the confidence to consume and invest. You cannot bet Australia's economic recovery on a pay cut. You cannot rebuild our labour market on more insecure work. A good economy doesn't drive good jobs; good jobs drive a good economy.

We cannot ignore that this bill sits, in the time line of government policy, 12 days from the end of JobKeeper and with no policy of support in sight. As a Labor dissenting report correctly points out, the government says the economy is doing well enough that business no longer needs JobKeeper. Then they say the economy is doing so badly that they need to cut the pay of workers. They can't have it both ways. COVID-19 should have been a wake-up call for Australia's policymakers.

Since the 1980s casual employment has doubled to a quarter of all workers. It has become an industrial norm with grave consequences. Most notably, insecure employment has become a feature of our aged-care industry. There's a lack of sick leave. Workers have been forced to work across multiple centres. It was a recipe for disaster at the onset of the COVID-19 pandemic. Miss Sherree Clarke, an aged care worker for more than 20 years, told her story to the inquiry into this bill. She said:

Because most of my work is so insecure, I can only plan to live on my minimum contracted hours, and a contract of 16 hours per fortnight is not enough to live on. This impacts all aspects of my lifestyle, including health. My budget does not allow me to choose healthy options and I often miss meals. Paying my car registration or visiting my dentist is a day-to-day decision for me.

Workers in the gig economy are in a similar position. Without sick leave to fall back on, without entitlements to use, workers in the gig economy couldn't afford to isolate and couldn't afford to socially distance. A recent survey of gig workers conducted by the Transport Workers Union of Australia found that they were paid as little as $10 an hour; 90 per cent had seen their pay decrease over time and 70 per cent were struggling to pay their bills and buy food.

Any government would have seen these issues, heard these stories and said, 'Enough is enough.' But, no, the Attorney-General, the Minister for Workplace Relations, said, 'It's all too complicated to pay people a minimum wage.' Senator Small just reconfirmed this government's view about exploitation. Let it rip, let it keep going and now they have a bill to encourage it. They could have chosen to reset the trend, fostering a labour market rich in well-paying secure jobs that give workers confidence and freedom to isolate when needed, to raise a family and to get by. Instead, this government looks at insecure work and calls it 'flexibility'. I can tell you, it's not flexibility when a worker has their wages stolen. It's certainly not flexibility when you have no ability or rights to negotiate a liveable wage. It's certainly not flexibility when you're forced to take a second or third job in order to make ends meet.

We cannot forget that this bill is just the second act in the government's attack on working people. First was their failed ensuring integrity bill, a bill to attack working people and their representatives to undermine their ability to argue for higher wages. Fresh from their defeat in the Senate, this government declared a new compact, a new accord, with working people. They established, they said, industrial relations working groups for unions and businesses to come together and form genuine proposals for reform.

In the context of COVID-19, the ACTU and its affiliates took this offer seriously. They sat down. They laid out issues that needed to be addressed. They even found an area of compromise. The ACTU and the Business Council of Australia hashed out some areas of reform only to have the other business groups boycott the meetings and the Liberals just abandon the whole process. This bill is the response, a bill to deliver an ideological industrial relations agenda on behalf of the most reactionary of the employer groups. It's one that paves the way for employers to cut the wages and conditions of workers like Sherree. How do we know this? Because not a single employer group that appeared at the hearings into the bill could give a guarantee that employees would not be left worse off under this bill. When asked, the representative of the National Retail Association said, 'I cannot give you that guarantee.' The Australian Hotels Association, when asked, replied no. The representative of the Australian Retailers Association replied, 'I don't think we can make any guarantees about reductions.' Of course, the Australian mines and metals association replied, 'It's very hard to answer complex relations matters with a yes or no.'

There should be nothing complex about whether or not the legislation will leave workers better off. If the industry and business community are so uncertain about the effect on workers then why were they so supportive of this in the first place? Maybe because they know what will happen under these laws. We know employers like to talk about complexity—well, some employers, certainly the ones that have been caught for wage theft—and say it's all too hard. They don't seem to have a problem with the complexity of this bill, do they? They operate under the same false assumption that you can get economic growth going only when wages are lower—when workers are cheaper and profits are higher. We recognise this for what it is: a lie.

It's the same lie that was told by this government when it sought to remove penalty rates. It made claims that this would create hundreds of thousands of jobs. That noise is still ringing in my ears. It claimed that employers unburdened with paying their workers extra for shifts would suddenly take on new staff. What happened? Nothing. The cut in penalty rates resulted in no more jobs, not a single one. No industry group, employer group or government has been able to demonstrate that any jobs at all have been created. Instead, according to the McKell Institute, some $2.87 billion in income was ripped from the pay slips of workers, further undermining consumption, confidence and demand.

This bill will entrench casual employment as a permanent feature of our industrial relations landscape, one in which a worker is a casual not because of the nature of their employment but because of a word inserted in the terms of their contract. Those employees that want to do the right thing will be left to the mercy of those who do the wrong thing. Those who want to do the right thing will not be able to bargain when they're trying to win contracts because of the undermining by those employers who do the wrong thing—and the new norm begins. It ignores the reality of modern work, assumes that employers will never use this definition to exploit workers, and seems primarily concerned with overturning the recent WorkPac decision. A myth promoted by this government is that the recent decision will see workers double dipping with entitlements and casual loading. This bill's new definition of casual is a solution to a problem that doesn't exist. The WorkPac case, from the outset, said: any back pay of annual leave entitlements against any casual loading that was paid. The problem was that the company was calling him a casual employee and not paying him any casual loading.

A number of labour lawyers raised this point during the hearings. The bill proposes a new definition of casual employment that would create a pathway for employers to declare a worker a casual on day one and then ignore those conditions for the length of their employment. As Per Capita outlined, at its worst interpretation the new definition and conversion clause could encourage employers to offer casual employment to all new employees, giving all employees a year of 'try before you buy' employment regardless of the eventual hours worked. It's said there are mechanisms to ensure an employer genuinely holds this view and will rectify it if it turns out to be incorrect. There's no mechanism. Under this legislation there is no right to arbitration unless the employer agrees. So here we have the exploitative employer having to agree that they can turn around and take the matter to arbitration. My goodness, is that the rule of law?

As the Law Council of Australia has rightly pointed out, without defined arbitration clauses there is no absolute power for the Fair Work Commission to settle disputes over the provisions of the bill. Instead, workers have to rely on the ability of the commission to remediate a dispute and, if the employer doesn't agree, well, then, tough luck.

There is no point having a right unless you have the power to enforce it. This bill's casual conversion rights are just that: rights in name only. The bill will make it easier for employers to cut the pay and conditions for their employees through amending a number of existing modern awards, adding new, simplified additional agreements to 11 awards, covering everything from pharmacies to restaurants, the meat industry and vehicle repair. Of course there's minimal parliamentary oversight. The minister responsible, the Attorney-General, can just increase the number of awards to be covered by these provisions. Of course, it doesn't stop there. The cat's already out of the bag. Business SA has proposed another 11 awards to be amended as such.

It's not just awards they're undercutting. It's the entire process of bargaining and agreements and the use of the Fair Work Commission as the rule of law. This bill will shift the burden of proof onto unions when seeking to strike an agreement. They will now have to make the argument that better pay and conditions for workers won't stand in the way of the employers' profits. This bill will also certainly prevent unions from intervening in the proposal of agreements to meet the better off overall test. One only needs to look at A1 Earthworx Mining & Civil, which, had the CFMMEU not sought leave to intervene and prevent its approval, would have seen workers paid as much as $180 a week less than the award. The striking of the approval agreement should play a fundamental role. This bill would seem to make this much harder. The effect of this will lower wages, and worse conditions and more wage theft will exist.