Helen Polley (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to speak on the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2021. This bill represents the Morrison government's latest industrial relations reform package and their latest attempt to erode the rights of workers and suppress wage growth. Labor have said from the outset that we will only support legislation which not only protects the pay and conditions of workers but enhances it and ensures secure jobs with decent pay. Christian Porter may have removed the most extreme part of this bill—the suspension of the BOOT for two years—but there is no doubt in my mind that the bill before us makes work less secure and cuts pay. It's also self-defeating because, without measures to create more secure jobs with the prospect of wage rises, workers will have less capacity and confidence to spend, which will in turn suppress demand and hurt the domestic economy.

This bill is being introduced at an unprecedented moment in Australian history. Before COVID-19 hit our shores, wage growth was at its lowest level since the 1930s depression. Now it's exacerbated by COVID-19. The recession has seen wages standing still, growing at a mere 0.6 per cent in the December quarter. The CPI rose by 0.9 per cent in this quarter as well. So any growth has been negligible. There is also a wide consensus amongst academics, unionists, economists and the Reserve Bank that wage growth must be incremental in ensuring that we are able to fuel our economic recovery. But this bill will do the opposite.

In its briefing note prepared following the introduction of the legislation, the ACTU said:

The Bill fails the Government's own test: workers will be worse off.

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The Government's changes will make jobs less secure; they will make it easier for employers to casualise permanent jobs and allow employers to pay workers less than the award safety net. This is the opposite of what the country needs.

The working group process was a great idea. Getting employers, unions and government officials around the table is productive. But, as indicated in these comments from the ACTU, it is clear that the bill does not represent a consensus outcome from the working group process. The government has, ultimately, reverted to type and bowed to the demands of employer groups, using the COVID crisis as leverage. As said repeatedly in the public hearings, this is a big-business-lobby wish list, and it will come at the expense of working men and women.

Despite the government's and employer groups' fear campaign around the impact of the recent Federal Court decision on employers hiring casuals, the bounce back in employment numbers has seen casual jobs accounting for around 60 per cent of all wage jobs created since May, according to the Centre for Future Work. We know that casualisation is alive and well in Australia, a country that is becoming increasingly split between the haves and the have-nots because of the Morrison government—because of their policies and because they want to undermine working Australians. They want to cut their wages and their conditions. That analysis found that between May and November 2020 casual employment grew by 400,000, by far the biggest expansion of casual employment in Australia's history. That's what's happening right now in this country.

The permanent addition of flexible work directions is proof that changes to the Fair Work Act introduced temporarily by the Liberal government are never that. This measure was originally introduced as part of the JobKeeper program and limited to employees receiving the wage subsidy. However, since then, it has continued to be expanded in its application, well beyond its original intent. That's why you always have to read the fine print in anything proposed by this government. But now the bill creates a new definition of a casual employee. Extraordinarily, the government has ignored years of common law and overturned the recent Federal Court decision that upheld the common law definition of what a casual is. The designation of an employee as a casual at the start of their employment determines their ongoing status, regardless of their actual work pattern. Under the government's own figures, this involves cancelling an estimated $18 billion to $39 billion in back pay that would have been otherwise owed to casuals.

Over the past seven years, and under the nose of the Morrison government, there has been a notable trend of increasing use of subcontractors and labour hire firms. This has been favoured by big multinational companies as the means by which they can cut wages and weaken workers' bargaining positions. It also makes it very easy for companies to shift blame and it has established a permanent casual rort—and we know the word 'rort' is so heavily associated with this government. There has been an epidemic of casualisation and underemployment in this country, from the mining industry through to retail and hospitality. This bill goes directly against the common law definition of a casual, undoing 20 years of very careful consideration by court authority. It supports big businesses and labour hire companies, and if this bill does pass it will allow the legitimisation of the permanent casual. The problems of being a permanent casual are widely recognised: absence of paid leave and job security make it difficult for employees to go on holidays and, more importantly, to obtain a mortgage to buy a house. And it also affects those who are trying to rent a home. Housing affordability is already a problem in this country, in particular in my home state of Tasmania. This bill will make it harder for working families to obtain a mortgage and to get their foot in the door.

What else is wrong with the plan? Employers must make a written offer of conversion to casual employees after 12 months if, for the previous six months, there has been a regular pattern of work. However, the employer does not have to make the offer if there are reasonable grounds not to. Do you remember that I said you've got to watch the fine print from this government? This is another example of it. An example would be if the employer had reasonable grounds to think the job might not be there in 12 months. The gap is so wide that it allows employers to not convert.

As we've seen from an analysis of the actual nature of casual employment, very little is about flexibility in most cases. Rather, the decision to engage workers as casuals is about creating precarious employment for its own sake. There is no arbitration of disputes other than by agreement. An employee who wants to dispute the decision can only do so by applying to the Federal Court. The bill introduces a new simplified additional hours agreement. The provision will be initially applied to 12 modern awards. These represent permanent changes and are effectively a reduction in the award safety net and are not temporary COVID-19 measures. This is an agreement between an employer and a part-time employee for the employee to work additional hours with little or no notice without being paid overtime. The new provision applies to employees who work an average 16 hours per week on a roster arrangement or, simply, 16 hours per week. The longer-term potential impact, or the risk of this arrangement becoming normalised, is that future part-time jobs will become a standard 16-hours commitment, with simplified additional hours being used to top up on an as-needs basis. This reduces job security and effectively casualises part-time work.

Of particular concern to me is the aged-care workforce. Eighty-eight per cent of aged-care workers are employed part time or casually, and roughly the same percentage are women, and the Liberal Party's agenda is a real kick in the guts for all the hard work that they, as a frontline workers, did throughout the pandemic. There is already chronic understaffing in this sector and this reform will only make it worse. It is hard enough to attract people into the aged-care and disability service industry. This bill will disincentivise workers from coming and working in aged care. As it is, workers need to put their lives on hold to make themselves available for that extra work and, if they can't, there is usually retribution. But things like child care are hard to organise at short notice. It's hard to enjoy your life if you are potentially waiting anxiously to get a call for an extra shift.

The Liberals' policy will entrench the permanent casual rort already rampant in this country under their watch. Those sitting opposite have held, and rushed, a truncated inquiry to try to push through the legislation by stealth. A major theme of the hearing was that this bill will erode job security in this country. People want certainty in their lives, and certainty comes with a permanent job. The Morrison government is doing all that it can to undermine work in this country and to undermine workers, and we on this side will always stand up for Australian workers.

This omnibus bill also includes flexible work directions that allow an employer to give directions to an employee about their duties and their location of work. This is a two-year provision based on the original JobKeeper stand-down directions that were introduced on the basis that they would be temporary and only connected to employees in receipt of JobKeeper. Since then, the provision has been extended to the so-called legacy employers. Now they apply to the 12 modern awards, but the minister has the authority to expand the list, thereby exposing all workers. This means that, for workplaces covered by identified awards, the special flexibility will be available to every employer who seeks to revive their business, even if they never qualified for JobKeeper.

In its analysis of this legislation the Scrutiny of Bills Committee, which I chair, has highlighted its concerns about the amount of significant matters in the bill that are set out in delegated legislation. This legislative instrument is not subject to the full range of parliamentary scrutiny, and we questioned why the government is doing this—and it's a habit with legislation after legislation of this government. We need to be able to scrutinise legislation. Regarding the changes in definition of casual employment, the committee has also expressed longstanding scrutiny concerns about provisions that have the effect of applying retrospectively, as it challenges a basic value of the rule of law that, in general, laws should only operate prospectively. The committee has a particular concern that the legislation will or might have a detrimental impact on individuals.

In essence, the bill will casualise permanent employment, restrict unions to intervening for workers who have no representation, reduce scrutiny of enterprise agreements, and completely undo the common law definition of a casual employee. It will also shift most of the risk in employer-employee relationships onto the employee. If workers have to bear all the risk, that makes it hard to get certainty. If workers don't have certainty, they cannot afford to contribute to our economy and they will not support Australia's jobs and economic recovery.

The government has rushed this inquiry. It's rushing this legislation. The minister responsible for this bill is on indefinite leave. We must question the need for this bill. A plethora of expert opinion has warned against it—and warned against it for good reason: it is all about undermining Australian workers and casualising the workforce in this country, and it deserves to be defeated.