Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I table a supplementary explanatory memorandum related to the government amendments to be moved to this bill and an addendum to the revised explanatory memorandum relating to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Just so everybody is aware of what's about to happen: these are some of the most complex and confusing laws that not just the Australian parliament but businesses across Australia—it doesn't matter what size business; medium businesses, larger businesses. I personally really feel for the small businesses in Australia, the mums and dads of Australia that wake up every single day and merely do what we, as other Australians, ask them to do: to get up in the morning, to open their doors, to run their business, perhaps even to employ some Australians—in other words, give those Australians a job that they can go to. I feel very sorry for them because, in 1½ hours' time, under the 'transparent'—ha-ha, rather ironic, I'm being sarcastic—Albanese Labor government we will actually end the scrutiny of what are, as I said, possibly the most confusing and complex industrial relations laws to ever come before this parliament.

You only have to pick up the phone to a small business owner. I've always said Labor wouldn't know a small business owner unless they were trying to shut their business, which is why they're ramming through these laws today. You have only to pick up the phone to a small business in Australia or even just walk into one to know. The first thing they'll say to you is, 'When is this pain going to end?' 'Unfortunately,' I say to them, 'there is only one way now, and that is a change of government, because, you see, we back you every step of the way as the coalition government. But I can't tell you.' I can't tell the small businesses of Australia when the pain inflicted on them by the Albanese government is going to end, because they are now swimming in a sea of red tape, of complexity and, more than that, of confusion that they have never seen the likes of.

The bad news for every business in Australia—as I said, ultimately big businesses can take care of themselves, but for small businesses, the backbone of the Australian economy, those who support communities, in particular in rural and regional Australia, each and every day, do you know there are penalties that apply to you if you get this wrong? So you'd better find a good lawyer. That's what I say to them. I don't know where the Albanese government thinks you're going to find the time to actually read what are now hundreds and hundreds of additional pages of complex legislation, bearing in mind this is tranche 3. The first tranche was passed in 2022—and I shouldn't say 'passed'. They had the numbers and rushed it through the parliament. The second tranche went through last year in December. Welcome to 2024. If you thought as a business in Australia that you were drowning under a deluge of red tape, the bad news is it is about to get worse thanks to Prime Minister Albanese. That is his 'happy new year' to businesses across Australia.

At the time of a cost-of-living crisis every time you walk into a shop and you go to buy some food, you see it. You walk out with half the amount that you would normally buy, yet you've paid what feels like double the amount. So you've got a cost-of-living crisis, you've got persistently high inflation, you've got businesses struggling with staff shortages and you've got ever-increasing power costs, and what does Labor say to that? 'That's okay because what we will now do for businesses across Australia—the people who employ Australians every day—is make a bad situation worse.'

What the Labor Party and Mr Anthony Albanese, as the Prime Minister of this country, simply (a) don't understand and (b) conveniently forget, is this: governments do not create jobs. Any government minister that stands in front of you and says, 'The government has just created X number of jobs,' is admitting to you they have increased the size of the Public Service. But it's the employers of this country, the mums and dads who get up every single morning and go out and sweat blood and tears for this country, who do what we need them to do. They provide us with the services that we want on a daily basis and, more than that, they give other Australians jobs.

Governments put in place policy frameworks, and those policy frameworks can have a positive impact. The policy framework that Mr Anthony Albanese, as Prime Minister of this country, is implementing—stage 1 has gone through, stage 2 has gone through and stage 3 will go through shortly—is one that affects businesses across Australia. In fact, I talked to a whole lot last night and they said to me, 'Michaelia, we are just tired.' So many of them said to me, 'We actually don't know why we bother, because Labor have just made it too hard for us, and if we don't bother it means we've got to lay off staff.' I said to them, 'I can't disagree with you because, quite frankly, under the Albanese government why would you bother?'

That's a good point, Senator Scarr. Under this government, why would you start a new business when you have no rights anymore? The Fair Work Commission now runs your business or, alternatively, the unions run your business. You have no rights in relation to your business. Under the Albanese government, you are no longer allowed to run your business in a way that you and your employees see fit to benefit both of you. This government, with their sweeping reforms—which are structurally changing the way businesses in this country do business—have taken away the right for employers and employees to negotiate together. They are allowing the unions—I'd say 'back into business', but this is just supercharged.

For the poor small businesses who've never met a union in their life, the bad news is you'll probably want to go onto Google and work out the ones you're going to meet. But not only that—and I remember standing and asking the minister last time about who decides this and decides that; the bad news is that you'd better find out who the Fair Work Commission in Australia is, and most employers wouldn't know what the Fair Work Commission is, because that body of people are now going to be telling you how to run your business. That's because of Mr Anthony Albanese and his contempt for you and what you contribute to Australia every day. Under Mr Albanese, businesses across Australia better get used to that.

Minister, last night the government said it will be accepting the Greens' amendments on the right to disconnect. We haven't had an opportunity, as a parliament, to even look at them. We only saw the amendments last night. The confusion that is currently in the Australian community about the right to disconnect is just overwhelming, yet—bad news everybody—it's going to be going through at 3.30 pm today.

So I have a series of questions for you. Does an employee have the right to disconnect from clients calling them after hours? Will the right to disconnect apply to journalists? If a politician's media adviser ignores a call from a journalist wanting a quote at 3 am in the morning—you are based in Western Australia and they are on daylight saving time; alternatively, it's for the Sunday paper—are they able to ignore that call from the journalist because it's 3 am or, alternatively, because it's Sunday? If an employee working on a large deal gets a call from a large multinational overseas client in a different time zone, are they able to say to that client, 'Sorry, it's the weekend in Australia. Please call me at 9:30 am on a Monday'? And if a client keeps calling an employee during their disconnection time, is it the employer's duty to call the client— (Time expired)

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'm not surprised that, even at the very beginning of this debate, Senator Cash is taking the opportunity to wildly exaggerate the implications of this amendment and the government's proposed legislation more generally. As I've noted on many occasions, every time this government attempts to do something to level the playing field when it comes to workplace relations, Senator Cash, more than anyone else, and the coalition in general always make wild claims about what this is going to do to Australia.

We saw Senator Cash do that before the secure jobs, better pay bill. We all knew that the real problem for the coalition with the secure jobs, better pay bill was the name, because anything involving secure jobs and better pay had to reflexively be opposed by the coalition. But, in doing so, Senator Cash ran around the press gallery, seeking every interview she possibly could take to make wild sorts of claims that the government's legislation was going to return Australia to the Dark Ages and was going to see all the supermarket shelves in Australia emptied. As I've pointed out on a number of occasions, neither of those things are true. It turns out that Australia remains in 2024, not the Dark Ages, not 800 AD or 900 AD—whichever year you might want to choose as the beginning of the Dark Ages.

It turns out we were in 2024 when that legislation was passed, and it turns out that, as a result, Australian workers do have secure jobs and better pay. It turns out that, if you go to a supermarket in Australia, the shelves are not empty. The shelves are full of food, full of milk, full of eggs, full of orange juice—whatever it might be that you choose to buy in an Australian supermarket. The supermarket shelves are not empty, as Senator Cash predicted they would be.

Today we are no doubt going to hear more wild claims made by Senator Cash and her colleagues about what the impact of this legislation will be, when, in fact, the implications of this legislation will be to continue the path that Australia has been set on since the Albanese government's previous tranches of industrial law changes were passed, and that is higher wages for Australian workers, lower unemployment, more jobs being created, inflation coming down and less industrial action. I'm sure that, at some point today, we'll see Senator Cash or her coalition colleagues make claims that we are going to see mass unemployment and people losing their jobs. We're going to see claims from Senator Cash and the coalition that we're going to see unemployment go up. We're going to see claims that it'll crash wages. We're going to see claims that it's going to cause industrial conflict.

Why I'm confident we'll see those claims is that that's exactly what we've heard from Senator Cash and the coalition every other time that we've attempted to pass workplace law changes.

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

I have a point of order. Senator O'Sullivan.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

On relevance, there were some specific questions that were asked on particular scenarios that people are seeking clarity on. There is a guillotine in five minutes time. I'm wondering if you could draw the minister back to the specifics of the question.

The TEMPORARY CHAIR: The minister is being relevant. He's leading into it. I sat here and listened to, I think, about 11 minutes of speeches before we got to the question. You have the call, Minister.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The reason I'm confident that Senator Cash and her colleagues will make those claims today, as I said, is that they've done that every time we've passed any changes to workplace laws. Every other time, Senator Cash's claims have been proven to be false, and they will again be proven to be false.

The specific amendment that we're dealing with here is the right to disconnect. The government does support this amendment to introduce a right for workers to disconnect from work outside of work hours. In practice, this will encourage employers and employees to have conversations about contact out of hours and set expectations that suit the workplace. The amendments introduce a right to disconnect to ensure employees are not required to monitor, read or respond to employer or work related contact out of hours unless refusing to do so is unreasonable. That last proviso—'unless refusing to do so is unreasonable'—is an important proviso that's been added to that. A list of factors will help determine whether an employee's refusal is unreasonable, including the nature of the employee's role and level of responsibility and whether the employee is compensated to remain available to perform work outside of normal working hours.

To provide further clarity to workers and business, the Fair Work Commission will be tasked with drafting right-to-disconnect terms for modern awards, reflecting the unique circumstances of particular industries, and issuing general guidelines for all workplaces. The Fair Work Commission will be able to deal with disputes promptly, including by issuing stop orders. This includes a power to dismiss frivolous and vexatious claims on its own motion or at an employer's request. The Fair Work Commission will be required to deal with applications as quickly as reasonably possible. The right to disconnect will apply six months after royal assent, and small businesses will have an additional 12 months to make arrangements with their employees and in their workplaces.

The other point I'll just make is that this new right to disconnect is an important reform to workplace laws to catch us up with the modern age. These days we have emails, mobile phone calls and all sorts of things that didn't use to happen in decades gone past, but it is important that our IR laws remain contemporary and deal with contemporary solutions.

The fact is that there are many enterprise bargaining agreements that have been entered into between employers, unions and employees that already make provision for a right to disconnect. And you know what? Those companies are still operating. The world hasn't fallen apart. We haven't gone back to the Dark Ages. We haven't seen supermarket shelves become empty because of this right that exists in enterprise bargaining agreements already. So again, Senator Cash, if the wild claims that you keep on making—that the world will end, that we'll go back to the Dark Ages, that supermarket shelves will be empty and that the Australian economy will collapse—are true, why haven't they happened already, when we've already seen a number of enterprise bargaining agreements entered into by employers, unions and employees that already give this right?

Unfortunately, every time you come in here or go to the media and make a wild claim about what will happen as a result of IR law changes and it doesn't happen, your credibility is shredded. That is why, increasingly, people don't believe the coalition when it comes to matters involving workplace laws or anything else. As I said, since we passed our IR law changes that Senator Cash and the coalition warned would bring the end of the world, we've seen wages go up in Australia, we've seen job creation go up in Australia, we've seen unemployment go down in Australia, we've seen less industrial conflict, and we've seen inflation begin to go down to a level lower than what we saw when this government was first elected. Every single claim that you have ever made about the effect of our workplace law changes has been disproven by the facts. At some point, it might be wise for the coalition to have a think about whether the exaggerations they make when they're debating workplace laws are even worth making, because every time it happens they don't happen, and your credibility gets shredded.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) on sheet 2361 in my name:

(1) Clause 2, page 2 (after table item 9), insert:

(2) Schedule 1, page 38 (after line 14), after Part 7, insert:

Part 8 — Right to disconnect

Fair Work Act 2009

94 Section 12

Insert:

right to disconnect term means a term in a modern award that provides for the exercise of an employee's rights set out in subsections 333M(1) and (2).

Note: Section 333M deals with the right to disconnect.

95 At the end of Subdivision C of Division 3 of Part 2-3

Add:

149F Right to disconnect

A modern award must include a right to disconnect term.

Note: Right to disconnect term is defined in section 12.

96 At the end of section 321

Add:

Division 6 is about generally allowing an employee to refuse contact or attempted contact from their employer (or from a third party where the contact or attempted contact relates to their work) outside the employee's working hours. The FWC may deal with disputes between an employer and an employee about the right to disconnect, including by making orders to stop an employee from refusing contact or to stop an employer from taking certain actions.

97 At the end of Part 2-9

Add:

Division 6 — Employee right to disconnect

Subdivision A — Employee right to disconnect

333M Employee right to disconnect

(1) An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.

(2) An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee's working hours unless the refusal is unreasonable.

(3) Without limiting the matters that may be taken into account in determining whether a refusal is unreasonable for the purposes of subsections (1) and (2), the following must be taken into account:

(a) the reason for the contact or attempted contact;

(b) how the contact or attempted contact is made and the level of disruption the contact or attempted contact causes the employee;

(c) the extent to which the employee is compensated:

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee's ordinary hours of work;

(d) the nature of the employee's role and the employee's level of responsibility;

(e) the employee's personal circumstances (including family or caring responsibilities).

Note: For the purposes of paragraph (c), the extent to which an employee is compensated includes any non-monetary compensation.

(4) For the avoidance of doubt, each of the rights in subsections (1) and (2) is a workplace right within the meaning of Part 3-1.

Note: The general protections provisions in Part 3-1 also prohibit the taking of adverse action by an employer against an employee because of a workplace right of the employee under this Division.

(5) For the avoidance of doubt, an employee's refusal to monitor, read or respond to contact, or attempted contact, from their employer, or from a third party if the contact or attempted contact relates to their work, will be unreasonable if the contact or attempted contact is required under a law of the Commonwealth, a State or a Territory.

(6) For the avoidance of doubt, if:

(a) an employee is covered by an enterprise agreement; and

(b) the enterprise agreement includes a right to disconnect term that is more favourable to the employee than the rights in subsections (1) and (2);

the right to disconnect term in the agreement continues to apply to the employee.

Subdivision B — Disputes about the employee right to disconnect

333N Disputes about the employee right to disconnect

(1) This section applies if:

(a) there is a dispute between an employer and an employee because the employee has refused to monitor, read or respond to contact or attempted contact under subsection 333M(1) or (2) and:

(i) the employer reasonably believes that the refusal is unreasonable; or

(ii) the employer has asserted that the refusal is unreasonable and the employee reasonably believes the refusal is not unreasonable; or

(b) there is another dispute between the employer and the employee about the operation of section 333M.

Workplace level discussions

(2) In the first instance, the parties to the dispute mustattempt to resolve the dispute at the workplace level by discussions between the parties.

Application to FWC to deal with dispute

(3) If discussions at the workplace level do not resolve the dispute, a party to the dispute may apply for the FWC to do either or both of the following:

(a) make an order under section 333P (orders to stop refusing contact or to stop taking certain actions);

(b) otherwise deal with the dispute.

Representatives

(4) The employer or employee to the dispute may appoint a person or industrial association to provide the employer or employee (as the case may be) with support or representation for the purposes of:

(a) resolving the dispute; or

(b) applying to the FWC to make an order under section 333P or otherwise deal with the dispute; or

(c) the FWC dealing with the dispute.

Note: A person may be represented by a lawyer or paid agent in a matter before the FWC only with the permission of the FWC (see section 596).

Subdivision C — Orders to stop refusing contact or to stop taking certain actions

333P Orders to stop refusing contact or to stop taking certain actions

(1) If an application made under subsection 333N(3) includes an application to make an order under this section and the FWC is satisfied that either or both of the following apply:

(a) an employee has unreasonably refused to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) and there is a risk the employee will continue to do so;

(b) an employee's refusal to monitor, read or respond to contact or attempted contact for the purposes of subsection 333M(1) or (2) is not unreasonable and there is a risk that the employer will:

(i) take disciplinary or other action against the employee because of the employer's belief that the refusal is unreasonable; or

(ii) continue to require the employee to monitor, read or respond to contact or attempted contact despite the employee's refusal to do so;

then the FWC may make an order under subsection (2).

(2) The FWC may make any order it considers appropriate (other than an order requiring the payment of a pecuniary amount):

(a) if the FWC is satisfied that the circumstance set out in paragraph (1)(a) applies—to prevent the employee from continuing to unreasonably refuse to monitor, read or respond to contact or attempted contact; or

(b) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(i) applies—to prevent the employer from taking the action; or

(c) if the FWC is satisfied that the circumstance set out in subparagraph (1)(b)(ii) applies—to prevent the employer from continuing to require the employee to monitor, read or respond to contact or attempted contact.

(3) The FWC must:

(a) start to deal with an application, to the extent that it consists of an application for an order under this section, within 14 days after the application is made; and

(b) deal with the application as soon as is reasonably practicable after the FWC starts to deal with it.

(4) Despite subsection (2), the FWC may dismiss an application made under subsection 333N(3), to the extent that it consists of an application for an order under this section, if the FWC considers that the application:

(a) is frivolous or vexatious; or

(b) might involve matters that relate to:

(i) Australia's defence; or

(ii) Australia's national security; or

(iii) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(iv) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

Note: For another power of the FWC to dismiss an application, see section 587.

(5) If an employer considers an application made under subsection 333N(3) (the original application) to be frivolous or vexatious, the employer may apply to the FWC:

(a) to have the original application dealt with expeditiously and efficiently; and

(b) a decision on the original application communicated by the FWC to the parties to the dispute in a timely way.

333Q Contravening an order

A person to whom an order under section 333P applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

333R Actions under work health and safety laws permitted

Section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws (within the meaning of that Act) do not apply in relation to an application made under subsection 333N(3) that includes an application for an order under section 333P.

Note: Ordinarily, if a person makes an application under subsection 333N(3) for an order under section 333P in relation to particular conduct, then section 115 of the Work Health and Safety Act 2011 and corresponding provisions of corresponding WHS laws would prohibit a proceeding from being commenced, or an application from being made or continued, under those laws in relation to the same conduct. This section removes that prohibition.

333S This Subdivision is not to prejudice Australia's defence, national security etc.

Nothing in this Subdivision requires or permits a person to take, or to refrain from taking, any action if the taking of the action, or the refraining from taking the action, would be, or could reasonably be expected to be, prejudicial to:

(a) Australia's defence; or

(b) Australia's national security; or

(c) an existing or future covert operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police; or

(d) an existing or future international operation (within the meaning of section 12E of the Work Health and Safety Act 2011) of the Australian Federal Police.

333T Declarations by the Director-General of Security

(1) Without limiting section 333S, the Director-General of Security may, by legislative instrument, declare that all or specified provisions of this subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

333U Declarations by the Director-General of ASIS

(1) Without limiting section 333S, the Director-General of the Australian Secret Intelligence Service may, by legislative instrument, declare that all or specified provisions of this Subdivision do not apply in relation to a person carrying out work for the Director-General.

(2) A declaration under subsection (1) may only be made with the approval of the Minister and, if made with that approval, has effect according to its terms.

Subdivision D — Dealing with disputes in other ways

333V Dealing with disputes in other ways

If an application made under subsection 333N(3) for the FWC to deal with a dispute does not consist solely of an application for an order under section 333P:

(a) the FWC must deal with the dispute; and

(b) if the parties notify the FWC that they agree to the FWC arbitrating the dispute—the FWC may 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)). See section 333P if the application also includes an application for an order under that section.

Subdivision E — Guidelines

333W Guidelines

(1) The FWC must make written guidelines in relation to the operation of this Division.

(2) Guidelines made under subsection (1) are not a legislative instrument.

98 Subsection 539(2) (after table item 10D)

Insert:

(3) Schedule 1, item 308, page 175 (after line 2), after Division 5, insert:

Division 5A — Amendments made by Part 8 of Schedule 1 to the amending Act

111A Definitions

In this Division:

commencement means the commencement of Part 8 of Schedule 1 to the amending Act.

111B Application of section 149F of the amended Act

(1) Section 149F (right to disconnect term) of the amended Act applies in relation to a modern award that is in operation on or after commencement, whether or not the award was made before commencement.

(2) However, a modern award is not invalid on or after commencement only because it does not include a right to disconnect term.

111C FWC to vary certain modern awards

(1) This clause applies in relation to a modern award if the award:

(a) is made before commencement; and

(b) is to be in operation on commencement.

(2) The FWC must, by the day before commencement, make a determination varying the modern award to include a right to disconnect term.

(3) A determination made under subclause (2) comes into operation on (and takes effect from) commencement.

(4) Section 168 applies to a determination made under subclause (2) as if it were a determination made under Part 2-3.

111D Application of amendments to small business employers

The amendments made by Part 8 of Schedule 1 to the amending Act do not apply in relation to an employer that is a small business employer on the day of commencement, or an employee of the employer, for a period of 12 months beginning on that day.

A right to disconnect in Australia is a long time coming and an important advance in our labour law that will make a difference. It'll make a difference to millions of Australian workers and their families. So many people—unions, academics, community groups, workers and some employers—have been negotiating, bargaining and calling for a right to disconnect for workers for decades. Countries around the world—France, Ireland, Italy, Spain and many more—have put a limitation on contact out of hours, and it's time for our country to do the same. Australian workers do an average of seven weeks of unpaid overtime a year. Working hours are out of control, and boundaries around work contact are broken.

Our amendment, the Greens amendment, to create a right to disconnect will rebuild the boundary around workers' personal time and create a safeguard for that time. This amendment means workers may refuse to monitor, read or respond to contact that is unreasonable and outside their paid working hours. It will restore the boundary between work and personal lives. It will reduce unpaid working time and wage theft. This amendment will usher into our workplace relations system some settings that are appropriate in view of the technology of the 21st century. It will provide desperately needed protections against the relentlessness of eternal contact through the digital technologies that we carry in our back pocket.

Technology that once might've promised freedom and a shorter working week has now, for so many workers, created a tether to the workplace in their phones and laptops, extending the length of the working week without being paid. Being contactable at all hours of the day, every day of the week, even on holidays, pollutes our leisure time and our care activities and erodes our personal lives. Workers need some protection, and that's what the right to disconnect will do.

The solution is to create a basic enforceable right, and that's what our amendment deals with. The scale and severity of this problem tells us loud and clear that the solution does not lie at the individual level; we need a right that's enforceable for people. You can't expect a worker to stand up, alone, to their boss when they receive a call at 7 am on Saturday morning when they're living on minimum wage, when they're not getting any allowance for availability and when they're not paid. They are not an executive sitting on their phone talking to New York about a big deal. They're an aged-care worker, they're a retail worker, they're a casual worker. They have no control. They have no backup to say no to their boss. They may never get another shift if they even raise a question about it.

This amendment will give those workers a bit of backup, which is exactly what they need to get some control and boundaries around their working time. They're in no position at present, without any rights in the workplace around this, to actually take some power back for their own mental health, their own physical health and their families. Even workers with secure full-time jobs are often not in a position to say no to a call on the weekend or checking emails during their holidays. Elizabeth Broderick's recent review of workplace culture in EY found that about one-third of their employees were working 51 or more hours a week at least one week out of every four. This competitive culture, which affects so many workplaces now—and it certainly impacts the culture faced by many casual and part-time workers—is intensified by technology that makes workers always available, where the culture is 'never say no'.

That's why we need to legislate limits on contacting workers outside of working hours and empower workers to switch off from monitoring work calls and emails where those demands are unreasonable. That is a critical phrase: what is reasonable here? What is unreasonable? Where you're not being paid to be available, where the contact is repetitive and intrusive or where you have significant family responsibilities then there are very significant boundaries that should be set so that the contact that's made is truly in the event of an emergency: it really does relate to a key task that must be dealt with immediately. What we need is a practical right to turn off your phone or computer outside of your paid hours where you're not paid to do so. People need time to look after themselves, their families and their friends. We need a healthier work culture allowing for genuine leisure and rest.

The Greens' Amendment will create a new right to disconnect, for employees not to be contacted outside their workplace. This right means that an employee may refuse to monitor, read and respond to that contact outside of working hours unless the contact is reasonable. In the same way that the Fair Work Act already judges and uses the term 'reasonableness' in relation to overtime, our amendment lays out some factors to guide the Fair Work Commission about whether the contact or the request to monitor is reasonable.

Now, I know we are going to have plenty of straw men put up in this parliament to try and turn this into a monster right. It's the kind of behaviour that we've seen for 40 years in this parliament whenever there's an attempt to improve the rights of Australian workers. It is false to suggest that workers who are paid at managerial level who have in their job description to be available to talk to New York or who have in their job description to take a call to help manage the media—it's part of their job—are caught by this. They are not caught by this principle. Such contact is in their contract; it's reasonable. It is a dreadful misleading of this parliament and the Australian community to set up those straw men and pretend that this is anything other than a clear, reasonable right which Australian workers deserve. It will be reasonable to contact a worker if they're receiving an allowance to be on call—like many of our parliamentary staff, who receive additional income to compensate for their hours.

The Fair Work Commission, a very experienced body which knows about the adaptability we need in different places and in different occupations, will consider the nature of the employee's role and their level of responsibility. The Fair Work Commission will have the power to tailor the way the right is implemented in modern awards, meaning it can be shaped to fit every industry. The reasonableness test and the role of the Fair Work Commission in implementing the right in awards and agreements allow for flexibility. That is what we need.

A right to disconnect already has a huge amount of support in Australia and worldwide. At least 56 enterprise agreements already have it—Victoria Police, journalists at the West Australian newspaper and in our universities, schools and local government. Many authoritative Australian industrial relations academics, including Associate Professor Chris Wright, Professor David Peetz and Dr Fiona Macdonald, and lots of other academics, have expressed strong support for and put forward clear evidence in support of this right to disconnect, recognising how it will look different in different industries but how fundamental and important this adaptation is to the kind of technology, the kind of workplace and the kinds of families and workers that we have right now.

In evidence provided to the inquiry into the closing loopholes bill, the Australian Federal Police Association argued that this right has worked 'extremely well'—their words—in Victoria and has led to their support for a harmonised approach across the Commonwealth. The Queensland Teachers Union successfully fought to guarantee a right to disconnection for educators in the state. Surveys show Queensland teachers on average work more than 45 hours a week without any overtime paid. No wonder an overwhelming 94 per cent of Queensland teachers voted in favour of an enterprise agreement that gives them the legal right to keep their work and home lives separate—to be able to turn off when they need to when they're not being paid. It is time that we secure this kind of protection, this right, for all workers. Workers and their families can't wait any longer for this urgent reform.

I've spent my working life interviewing, surveying and researching amongst Australian workers, especially Australian working women. They need the right to be able to have a child, to have a family, to look after their aged parents, and so do their partners—to be able to do the combination of care with their work responsibilities. At present, they are often caught, feel guilty and are unable to turn off their phone when they're looking after all of those care responsibilities. We have a new kind of workforce; we have a workforce that's increasingly made up of carers and of women, and our industrial relations legislation must rise to this 21st-century challenge.

It is time we implemented this right. It's good for workers, good for women, good for carers and their families and good for our communities. It's really good for our health and safety in the long run, and very good for our workplaces, our country and our productivity.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

They promised so many things, Senator Lambie, but they don't—

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

Senator Lambie, I just want to seek some guidance from the chamber here. It is a free-ranging debate, and that's fine, and I know we have a hard marker. But there is an amendment before the Senate now on the right to disconnect. Did you have any questioning or any comments around the right to disconnect? I don't want to upset the whole Senate chamber, but I don't want to get into—

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Yes, it does.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I don't think it is particularly wise for me to get into hypotheticals, but—

Opposition Senators:

Opposition senators interjecting—

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Hang on, hang on! As Senator Pocock has pointed out, and as I think Minister Burke has pointed out, in essence this right would not apply to employees who are compensated to remain available to perform work—I will take you, Senator Lambie, to clause 333M, which sets out the right to disconnect. Subsection (3) says that some of the things that need to be taken into account about whether it's unreasonable for an employee to refuse to be contacted include:

(c) the extent to which the employee is compensated:

(i) to remain available to perform work during the period in which the contact or attempted contact is made; or

(ii) for working additional hours outside of the employee's ordinary hours of work;

In my experience, the staff in my office who handle media inquiries outside of hours are paid an additional allowance in recognition of, essentially, the overtime they are required to work in their role. I daresay there are similar arrangements in place for most staff who work in this building, in recognition that it is a workplace with unusual hours. Political staffers, under the MOPS enterprise agreement, receive an extra allowance in recognition of the fact they are regularly required to work outside of normal working hours. The terms of employment of political staffers will be a key consideration in determining whether a staffer electing to disconnect is unreasonable. For those journalists following the debate, I don't think they need to be concerned about whether they're going to be able to contact media advisers for politicians after hours; it is recognised that that is quite a normal occurrence in this line of work and that that is the reason those staff are paid an additional allowance for working extra hours.

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

I take it, Senator Lambie, you've resumed your seat. Did you want to continue asking questions? If you do, I'd advise you to stand up so your microphone is on.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

That decision, as to what is reasonable, is one that's got to be made by the Fair Work Commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Exactly!

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I know Senator Cash always hates it when I point out that, under the legislation, the Fair Work Commission has certain rights. That's the way our industrial relations legislation has always worked. It works when we have Labor governments, and it worked when Senator Cash was the IR minister. There are a range of matters left to the Fair Work Commission. Senator Cash, what's good for the goose is good for the gander. It's been a long tradition in Australian workplace laws that there are a range of matters left to the Fair Work Commission, or whatever it was called previously, to determine—and this is no different.

Senator Lambie, again, the arrangements and the enterprise agreements that apply to personal staff and ministerial staff across almost all of the roles, if not all of them, include an overtime allowance. For electorate office based staff—which, I'm guessing, is probably what most of your staff are—you would be familiar with the fact that there are what are known as ESA points, extra allowances that can be paid to electorate office staff, again in recognition of the additional hours that they're required to perform. It'll be a matter for the Fair Work Commission to decide that, but I would expect that the Fair Work Commission would take into account the fact that people in this line of work are paid additional allowances in recognition of their unusual hours, and it would therefore be difficult for such an employee to say that they cannot be connected in those unusual hours.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Lambie, presuming this amendment is passed, it will become the law of Australia, and every employee who's covered by the act would have this right. The point is to broaden and extend it from the enterprise bargaining agreements where it already applies and to make it a broader right for all employees.

You asked, Senator Lambie, about the types of factors that need to be taken into account to determine whether it's reasonable for an employee to refuse to be contacted outside their normal hours. All of those reasons are set out in proposed section 333M(3). I know we've got limited time, so I won't read them all out, but all of those reasons are clearly set out in that clause.

You raised small businesses. I think I addressed this before. The right won't exist until six months after royal assent to the bill, but for small businesses there will be an additional 12 months on top of that to make arrangements with their employees and in their workplaces before the Fair Work Act obligations apply.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I am pursuing the issue that had been raised by Senator Lambie. Senator Lambie's point—and you have articulated this, I believe in your answer—is that there are no exemptions as such. No-one is exempt. If an issue is raised, despite the fact that you are compensated for additional hours, you can still bring a claim, and the Fair Work Commission itself is the determiner of what is reasonable and what is not. It is a little bit like national security and the Defence Force. There's actually no carve-out for national security and the Defence Force. I personally would have thought that the government would have looked at this and perhaps proposed an amendment so that, in relation to national security and defence, there is a carve-out, but there is not.

The point Senator Lambie is making, yet again, is that there are no exemptions here; there are merely factors that the Fair Work Commission may take into account when a claim is made. As Senator Lambie knows, the Fair Work Commission may well say, 'Guess what: it's not adequate, you're not compensated, and you now have a right to disconnect.'

I will pursue something that has been raised particularly by businesses that work across time zones. It's been raised, in particular, by businesses in my home state of Western Australia. The West Australian newspaper, on behalf of businesses in WA, has been pursuing this issue. At the best of times, people in WA and people in the east know it is difficult to do business in Western Australia when you have a three-hour time difference. I don't think it is unusual for me to say that there are many in Western Australia who start receiving calls as early as 2.30 to 3 am during daylight savings—it's as simple as that—because it is already 5.30 to 6 am in the eastern states. The eastern states are already open for business, when in Western Australia technically people are still in bed.

The issue that the business community have been raising is that, the way this is drafted and the fact that there are no exemptions—there are only guidelines that the Fair Work Commission itself is able to pass comment on and determine on—this will cause difficulties for employers with staff working in different time zones. Businesses then say that this could be devastating to businesses across Australia and cause chaos for Western Australian businesses, particularly if employees could only have communication with east coast colleagues in the narrow window between east coast business hours and those in the west. Imagine if employees in Sydney or Melbourne were banned from emailing an employee in Perth until midday to align with WA time or if a Perth manager would be breaching the law in providing an update to his or her east coast colleagues after 2 pm—or even, let's face it, 5.30 pm WA time is actually 8.30 pm eastern states time.

So the question that has been raised is: for example, a company operates across Australia. Staff are actually very good about respecting colleagues in Western Australia, knowing when it's best to contact each of them. But what will actually happen if mistakes are made, or, alternatively, what will actually happen if there is going to be an impact on the business? These are very genuine questions that have been raised by, as I said, Western Australians in particular. How is this going to work, and what are the guarantees the government has in place that this won't impact the Western Australian business community and, more broadly, the economy?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'll come to the WA point in a moment, Senator Cash. I've actually forgotten the point you made at the very beginning of that, but you were essentially talking about the risk that employees might abuse this new right. I would point out that under clause—

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Chair!

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Sorry, that was the way I interpreted it.

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

If you have a point of order, please stand and raise the point of order.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

It is a point of order. I am being verballed—

The TEMPORARY CHAIR: And wait for the call. Senator Cash.

I am being verballed by the minister. That's not what I said. I was raising a very genuine concern. I was reading out concerns from the business community in relation to the impact of this on Western Australia, and I said that at the outset of my contribution.

The TEMPORARY CHAIR: Minister, if you could take that into account.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Sure. As I say, I will come to the Western Australia point. I did think at the beginning of your contribution, Senator Cash, that you were raising a concern that the right might be abused. All I was going to do was point out that clause 333P(4) does allow the Fair Work Commission to dismiss an application made by a worker if it's frivolous or vexatious. So there is some protection there for employers, whether it's Western Australia otherwise, against frivolous or vexatious claims.

In relation to the point about Western Australian businesses that I have seen ventilated in some of the media, particularly in Western Australia media over the last few days, the first point to make—and Senator Cash acknowledged this—is that none other than the West Australian newspaper's own enterprise agreement already provides a right to disconnect for its workers. So, if the West Australian newspaper has been able to make this right to disconnect work prior to the right being implemented by legislation, then I am confident that other Western Australian businesses are quite capable of managing this as well. The West Australian newspaper is obviously an example of a business that operates across a number of different time zones. They've got journalists and other staff working in this very building, yet they were able to come to an arrangement with their staff that would make this right to disconnect work, notwithstanding the difference in time zones. Again, I've got every confidence that other Western Australian businesses will be able to do so as well.

Senator Cash, as for Western Australian businesses more broadly, again, I'd refer you to clause 333M(3), which sets out the factors that the Fair Work Commission needs to take into account in determining whether an employee's refusal to be contacted after hours is unreasonable. They include: the reason for the contact or attempted contact; how the contact or attempted contact is made; the level of disruption the contact or attempted contact causes the employee; the extent to which the employee is compensated for working and for being available in additional hours; and the nature of the employee's role, the employee's level of responsibility and the employee's personal circumstances.

Again, I think it's dangerous to get into hypothetical situations when this is something that will be left to the Fair Work Commission. But the Fair Work Commission is being required, under what we're proposing, to take into account the nature of the employee's role and the employee's level of responsibility. I dare say that the Fair Work Commission would distinguish between a highly paid executive in a Western Australian based company, on the one hand, and, on the other hand, a low-paid aged-care worker, hospitality worker or office worker when it comes to whether they could be contacted after hours and whether it's reasonable for a person in that position to be repeatedly contacted after hours. I have confidence that the Fair Work Commission can get this right, especially when the legislation requires them to take into account, amongst other things, the nature of the employee's role and the employee's level of responsibility.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Casual miners—so-called casual miners—working in Central Queensland and the Hunter Valley are each owed an average, due to wage theft, back pay of around $33,000 per year for every year of service. If you're a casual, you are likely owed $33,000 per year that you have worked. My amendment aims to get these miners their back pay.

Before getting to that, I note that the Senate has yet again been hijacked with a guillotine this afternoon, when almost half the Senate want more debate. This is a grotesque abuse of power. It's a grotesque abuse of democracy. It's a grotesque abuse of process in this Senate—the people's Senate. These are serious guillotines. We know that sometimes guillotines are arranged, and that's fine, with the consent of just about everyone. Regarding serious guillotines, where there's a genuine disagreement between Labor and the LNP and a need for more debate, here are the figures: in the 45th Parliament, there were two; in the 46th Parliament, there were 24; and, in the 47th Parliament, under Labor, the Greens, Teals and the coalition, we're halfway through and there have been 39 already. Almost all guillotines involve a Labor-Greens-Teal-Senator Pocock coalition. This morning we have Senator Thorpe and Senator Pocock amending significant industrial relations legislation affecting many employees, small businesses and employers around the country. Yet we have limited time to assess and almost no time to debate.

Minister, last night in my second reading speech, I explained, in great detail, what I believe is the largest systemic wage theft in Australia. It's explained in the independent report that One Nation commissioned. I foreshadowed an amendment to pay casuals working in the black coal mining industry. It's been tabled. Casual coalminers are being ripped off to the tune of around $33,000 each and every year.

Labor's bill would put more power with union bosses. After what I unveiled last night, that's putting the fox in charge of henhouse. The CFMMEU, the Construction Forestry, Maritime, Mining and Energy Union, enabled and supported wage theft from casual coalminers. The CFMMEU negotiated and endorsed enterprise agreements that pay casual coalminers less per hour than the award combined with a 25 per cent casual loading. Some enterprise agreements in the coal sector paid and still pay paid casual workers less than a full-time worker receives per hour under the award. Ignore the loading; it is less than the award. That's a casual being paid less than a full-time worker. How? CFMEU union bosses negotiated and approved this wage theft.

Minister, union bosses negotiated and approved these agreements that pay casuals less than full-time workers, yet your bill places more power with those union bosses, who failed to protect workers and who betrayed workers—union bosses who enabled theft from mineworkers. The Fair Work Commission failed. They failed to properly assess these agreements and let them sail through. They approved them. When I asked the Fair Work Commission at Senate estimates to provide me with a copy of the better off overall test, the BOOT, that they had conducted for just one of these agreements, they could not hand over a single document or spreadsheet—not one. This is a wage theft resulting from a cosy collusion between the labour hire companies, including the world's largest labour hire company, which is owned by a Japanese parent company; union bosses who betrayed workers; and the Fair Work Commission. All three are culpable.

My amendment on sheet 2339 will trigger a review of those coal enterprise agreements to ensure they meet all relevant entitlements. It would ensure any underpaid casual coalminers are compensated for the wage theft they have suffered and would pay them the $33,000 each per annum that they're entitled to. This cost would be apportioned between the offending labour hire company—the employer—the union and the Commonwealth, through the Fair Work Commission, for their culpability in the wage theft.

Senators who vote for Labor's legislation without voting for my amendment are endorsing massive wage theft—Australia's largest ever wage theft. Legislation must not just attempt to fix it for the future; it must right the wage theft and get the back pay. Minister, why doesn't the government support my amendments on sheet 2339 to pay back entitlements for casual coalminers that have had wages stolen from them—$33,000, on average, per year?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Roberts, thanks for providing a copy of this amendment to me before the debate started. The government does not support your proposed amendment. We consider that the bill as it stands, which we're introducing here, provides a considered and balanced framework for defining casual employment and supporting casual employees to convert to permanent employment. The government has consulted with a wide range of stakeholders to reach a position that addresses both employees' and employers' needs. The government's reforms that were passed last year also give labour hire employees the right to seek orders from the Fair Work Commission that provide entitlements to the same pay under a host business's enterprise agreement. Casual labour hire employees in the black-coal-mining industry can also seek these orders. So, Senator Roberts, the bill as we are presenting it already addresses the needs that casual workers, whether they be miners or others, undoubtedly have. The reforms that we made in our amendments last year, around the labour hire loophole, were also designed to address the rights of casual coalminers in particular.

Senator Roberts, I've obviously been in a number of estimates hearings where you've raised these issues. It is my observation that you have been given answers to these questions by officials on a number of occasions. You haven't accepted those answers, and you continue to ask the same questions. It's your right to do so, but I think it's pretty clear that whatever answer you're provided with won't satisfy you. It's your right to continue campaigning on this issue, but I would remind you, Senator Roberts, that last year, when we did introduce changes to benefit labour hire casual employees to ensure that they are paid at least the same as the permanent workers they work alongside, it was unfortunate and surprising that you voted against that change. I would have thought that, if you were as committed to the rights of casual coalminers as you say you are, you would have voted with the government for those reforms that we implemented last year. I was surprised that, after a number of years of you campaigning on this issue, you voted with the coalition against the interests of those labour hire casual coalminers who you say you represent.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Minister, let's have the full truth. We voted against that because it didn't address the core issue. There is no casual permanent rort loophole at all other than the one I've just discussed. The simple solution is that the Fair Work Act needs to be enforced. Your bill covers the future. Your previous bill covers the future. It shuts the door to backpay of these miners who are owed, on average, $33,000 per year for the breach of the Fair Work Act. Way you covering up union bosses' culpability? That is what you are doing. That's what Minister Burke is doing. Minister Burke has received two letters from me on this issue. We get a polite, 'Nothing to see here; move on.' I've written letters. Miners have been in touch through personal meetings and provided solid, written evidence to the department's senior advisers. Nothing has happened. With the minister's office's senior advisers, nothing has happened. With the Fair Work Commission, nothing has happened. The Fair Work Ombudsman used a fraudulent document to deny any case for the miners, despite the miners having five documents, including court hearing transcripts, that say their documents are correct. Why you continuing to cover this up against miners in the Hunter Valley and Central Queensland? Why are you continuing to cover it up? Is it because union bosses in the CFMEU are culpable because they have engineered this? Is it because union bosses in the CFMEU are the ones who started labour hire in the coalmining industry? Is it because they were actually employers and they had some commercial agreements that we've got wind of? Minister, these people are entitled to their back pay. That's what I want, and that's what this amendment covers. It covers their back pay. We don't want this bill to go through and simply bury the issue. That's what Minister Burke is doing. Why are you covering up for union bosses? Is it because they funnel millions of dollars into Labor Party campaign coffers? Why are you not doing this after almost five years of me bringing this to your attention?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As Senator Roberts has just made clear, he has been raising these issues for five years. The questions have been answered for five years, and I don't propose to add to any of them, but again I point out that Senator Roberts and Senator Hanson did have an opportunity late last year to vote with the government to ensure that the rights of labour hire workers in coalmines were protected. Unfortunately, Senator Roberts decided to vote with the coalition.

Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I will repeat myself. We are not voting for legislation that covers up, endorses and prevents miners from getting their back pay. When this Labor government stops covering up for CFMEU bosses who've done dodgy deals, stops covering up for the Fair Work Commission and the Fair Work Ombudsman, which are not doing their job; and stops covering up for labour hire companies—we will not vote for legislation that prevents miners getting their back pay and covers it up.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I want to ask some questions—and I know Senator Lambie has some as well—on casuals. Perhaps I could go through the proposed amendments to the definition of 'casual employees' that will be agreed to later today. The bill itself, as we know, scraps the current definition and provides a new definition of 'casual employees'. The proposed new definition provides that an employee is a casual employee on the basis that the employment relationship is characterised by an absence of a firm advance commitment to continuing and indefinite work and the employee would be entitled to a casual loading. The bill then proposes to define the phrase 'absence of a firm advance commitment to continued and indefinite work' by reference to a series of points: the real substance, practical reality and true nature of the employment relationship; the contract of employment or the mutual understanding or expectation between the employer and the employee not rising to the level of a term of that contract, which may be inferred from the conduct of the employer and the employee after entering into the contract of employment, or from how the contract is performed; and having regard to but not limited to (a) an inability of the employee to elect to offer work or an inability of the employee to accept or reject work, (b) the nature of the employer's enterprise and (c) whether there are full-time and part-time employees performing or whether there is a regular pattern of work for the employee.

So, anybody in the gallery who's a small business, that's your new test for employing a casual. God help you, is all I can say. Can I ask a series of questions, though, in relation to how this is going to play out? Can you confirm under the provision proposed that, even if a casual employee wanted to sort out and agreed that they were a casual employee, the Fair Work Commission, under this definition, can still determine that they are not in fact a casual employee?

My second question: if a business has one of its casuals defined as permanent due to a decision by the Fair Work Commission, will the business then have to define as permanent other casual employees who are in the same situation, even if the other employees want to remain casual?

My next question: if the casual employee who originally wanted to remain casual then decides, at a later point, that they want to become permanent, is the employer required to make them permanent? Or do they then need to go back to the Fair Work Commission for a decision? In the legislation, proposed section 15A(3)(c) states:

a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time …

The question that's being asked there is, can you define what 'absolutely uniform' means in that situation? And the other question that then arises is, when is a pattern of work that could lead to an employee being classified as permanent 'absolutely uniform' and when is it not 'absolutely uniform'? And are you able to give a clear definition to small businesses in terms of what is defined as a 'regular pattern of work'? Or will this be a decision of the Fair Work Commission, which could produce a wide variety of results? They're all questions that have been put to me and submitted by small businesses.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'll do my best to answer those multiple questions. Just before I do so, I might give a brief statement on what we're seeking to do with this amendment. One of the things that this bill seeks to do is to amend the definition of casual employment to become a fair and objective test of whether someone is a casual employee or not. That's because we consider the situation we have under the current law, which allows an employer to treat someone as a casual even if they are working like a permanent worker, to be an unfair loophole. The new definition will keep the core concept that a casual is someone who does not have a firm advance commitment to continuing indefinite work, but it ensures this concept is understood by reference to the practical reality of the employment relationship. The new definition will allow parties to assess what is really going on in the workplace instead of just looking at what was in the employment contract on Day 1. It's simply not good enough that an employer can dictate in an employment contract that someone is a casual employee even if, the way the job works out, the employee is working permanent rosters and permanent hours like a permanent employee. They continue to be treated as a casual because that's what the original contract said, and that's what we're seeking to change. If a casual employee wants to change to permanent, the new employee choice pathway means they have a fair way to initiate this.

I'll come to the questions Senator Cash asked. The fundamental point is that, if a worker wants to remain casual, they cannot be forced to changed. Senator Cash, I think your initial question was: if a person wanted to remain as a casual employee, can the Fair Work Commission determine that they are not a casual? The answer is 'no', because an employee has to choose to become permanent. Similarly, the opportunity to become a permanent employee rests with the individual employee and will depend on their individual circumstances. The mere fact that other workers in a workplace are deemed or become permanent doesn't necessarily mean that every other employee in similar circumstances becomes permanent. That individual employee has the right to seek to become permanent or remain as a casual.

I might also point out—because there have been some claims made about red tape in this legislation—that one of the things we're also doing is streamlining this process as a result of some advocacy from business groups. The law as it currently stands, as it was amendment by the former coalition government, essentially provides a requirement on employees to review and offer the opportunity to convert to permanent on an annual basis. That requirement is being removed under this legislation. The way this will work is that a casual employee working in a medium or large sized business after six months of employment would have a right to seek to be converted to permanent. If they're working in a small business, it would be a 12-month wait before they can ask for that. If it didn't happen, and they still wanted to convert to permanent later on, they would continue to have a right to ask their employer to do so, but the right doesn't even begin until six months work as a casual in a medium to large sized business or after 12 months in a small business.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

There were some other questions in relation to when a pattern of work is absolutely uniform, which could lead to an employee being classified as permanent, and when it is not absolutely uniform. In relation to the proposed section 15A(2)(a) in item 1, it requires characterisation of an employment relationship to be determined by reference to its 'real substance, practical reality and true nature.' The question that's being asked there is: Are these three concepts intended to be synonymous or distinct? If distinct, what are the intended differences between the three?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Cash, as you would be aware, the concepts that are set out in that amendment—that the commission would need to consider the substance and the true nature—are well-understood terms in employment law, and it would be incumbent on the Fair Work Commission to apply the general meaning as they have determined it in many cases. They would be required to apply that in this case as well.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I'll go back to the question in relation to 'absolutely uniform' in terms of the pattern of work that could lead to an employee being classified as permanent. When is it not 'absolutely uniform'? The other issue that I've been submitted in terms of questions that are consistently being asked is that, if a casual worker works one day a week regularly but works two other random days each week, will they have a regular pattern of work for the purposes of 15A(2)(c)(iv), given that section 15A(3)(c) states that the regular pattern of work does not need to be uniform? Hence my first question about what the government is actually saying, in terms of small businesses, about being absolutely uniform and not absolutely uniform.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I think the important thing to remember here regarding 'uniform' is that it's not as if that's being put forward as the test that needs to be satisfied for someone to be able to convert from casual to permanent employment. The amendment makes clear that the test of whether someone is casual or not is whether there is an absence of a firm advance commitment to continuing and indefinite work. That is the test, and that is the test that used to apply under Australian law prior to the High Court decision in the Rossato case. It's also important to remember that no-one is forcing a casual employee to convert to permanency, and no-one is forcing an employer to do so. What will happen as a result of this is simply that an employee who is described as casual will have an opportunity to seek to convert if they can demonstrate that they are not a casual employee.

I might also just make the point that while there are some employer groups who have complained about this—we recognise that—there are also employer groups who have supported this change, such as the Australian Hotels Association. Pubs and clubs are big users of casual labour. There are many people who work in pubs and clubs who are genuine casual employees. They work 10 hours one week, 20 hours the next and none the week after—genuine casual employees. But there are unfortunately other workers in other industries that do work the same hours, week after week, month after month, year after year, and are nevertheless treated and paid as casuals. That's allowed to happen under the current law, and that's what we say needs to be changed. The Australian Hotels Association supports our proposal as to the definition of 'casual employment'. They say that it strikes the right balance. We've essentially reinstated the common law definition that existed before the Morrison government took an axe to workers' rights in 2021. The new definition focuses on the reality of the employment relationship, not how it might have been described in the employment contract.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Again, in terms of the definition of 'casual', for the avoidance of doubt, is the meaning of 'casual employee' in the sham provision of the proposed section 359A in item 21 qualified by the proposed section 15A(5) in item 1, which states that an employee 'who commences employment as a casual employee' remains so until the occurrence of one of four events?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I'll attempt to answer the question. If it's not the right answer for the right question, let me know. These what have been called sham casuals provisions prohibit employers from deliberately undermining the use of casual employment, and they're modelled on the sham contracting provisions under the act. Under section 359B, employers 'must not dismiss, or threaten to dismiss' an employee to re-engage them as a casual. Under section 359C, employers must not make false statements to a non-casual employee 'in order to persuade or influence' them 'to enter into a contract for casual employment'.

We recognise that the majority of employers do the right thing when engaging an employee. The inclusion of the sham casual provisions is supported by the independent review of the previous government's laws, which found consideration should be given to provisions to exclude sham casual employment arrangements from meeting the statutory definition. Hopefully that answers your question.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Going on to another section that flows from that, with regard to section 15A(2)(c), the considerations are not limited to the preceding subparagraphs. What are the other considerations the government believes might then be weighted?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Again, those words are commonly used in legislation to allow, in this case, the Fair Work Commission—in other cases, different tribunals or courts—to consider other factors. It's not the government's intention to prescribe other factors beyond those which are already set out in the legislation.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I turn now to the definition of 'employment'. We had asked some of these questions in the committee stage of the Senate inquiry but hadn't been able to get answers to them, so I want to go through them again. If and when the bill is passed, how many different definitions of 'employee' will there be across Commonwealth, state and territory acts? What is a person who was previously an independent contractor who becomes an employee under the legislation? This is the question that's being asked: does that mean that they are treated as an employee under tax legislation, and could it be possible that someone is an employee for the purpose of the Fair Work Act but a contractor under the tax act?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Part of the reason for the definition that is being put forward in this bill is the notion of employee-like conditions. But, for the purposes of Commonwealth workplace laws, there will be one definition of 'employment' and one of 'employee', and they are the ones that are being put forward in this bill. I think it's well understood that there are some workers who are covered by federal legislation and there are other workers who are covered by state legislation, and of course the relevant definition of 'employee' and 'employment' will depend on whether they are a state regulated or Commonwealth regulated form of employment.

On the point about definitions for workplace laws and tax laws, as far as I'm aware, it's always been the case that a worker may be considered an employee for workplace relations purposes but an independent contractor for tax purposes, because there are different definitions, and it has always been thus. So the fact that there may be different definitions at the federal level depending on whether we're talking about workplace relations law or tax law is nothing new.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

This is the flow-on question that has arisen. If you're the employer of this person under the Fair Work Act, you would have to treat them as an employee—that is, withhold income tax, for example—but under the tax act, if they're a contractor, they would have to charge you GST for their service. So a person could be paying income tax yet also charging GST for the same work. Can you just confirm if that is the case?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I am advised that that is the case, but again that's not anything new. It's always been the case that someone could be treated as an employee for a workplace relations purpose under federal workplace relations laws but be treated as an independent contractor under tax laws. The only change here is that we are changing the definition of 'employee' and 'employment'. The idea that there are different definitions for workplace relations laws purposes and tax purposes is nothing new.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I will now ask some very brief questions, because we've now only got 15 minutes left to ask questions. I will go to the issue of road safety and 'employee-like'. With regard to proposed section 40D, which refers in subsection (b) to 'the need to avoid unreasonable adverse impacts', the question is: when is it intended that adverse impacts would become unreasonable, and is the effect of that provision on the road transport objective that there will be some adverse impacts that are reasonable and acceptable?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Senator Cash, you'd be aware that one of the differences between this debate on changes to the road transport industry and the debate we saw roughly 10 or 15 years ago, when the then Labor government made changes, was that this time the proposals we're legislating around the road transport industry have the widespread support of road transport employer groups. The intention is that the body—I think it's called the road transport advisory body or a name like that—that will be established under this legislation will provide advice to the Fair Work Commission on the types of matters that you're talking about, and it would then be a matter for the Fair Work Commission.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Continuing with section 40D, regarding subsection (b)(iii)—administrative and compliance costs for road transport industry participants—can you confirm when they become unreasonable? Then, in terms of the Fair Work Commission, section 40E(4) states that the president of the Fair Work Commission must consult and have regard to the views of the RTAG. What capacity will the president have to ignore, reject or overcome the advice of the RTAG? It's one thing for them to provide advice, but, based on what you've just said, if you look at section 40E(4), it merely states that the president must consult and have regard to the views. It does not say that the president needs to accept those views and then act on them.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The approach that we're putting forward here requires standards to be made by an expert panel which informs the Fair Work Commission's decision. The reason we've gone down that path is that that ensures that the Fair Work Commission has the appropriate knowledge and expertise of the road transport industry to perform its functions under the bill while retaining flexibility to achieve an appropriate and efficient allocation of resources to manage its overall caseload. But again, Senator Cash, as I think I said earlier, it's not unusual for the Fair Work Commission to be given the right to make its own decisions—in this case, based on advice. The Fair Work Commission is a standalone body with its own decision-making powers, and it must consult the road transport advisory group. But of course it retains the decision-making powers, as it does under any other number of other sections under the legislation.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Continuing on then with section 40, under section 40F(4), in what circumstances may the minister revoke a person's appointment to the RTAG, and, under section 40F(5), is it intended that the RTAG would have any capacity to ignore, reject or overcome any directions provided to it by the president of the Fair Work Commission as to the way in which the body is to carry out its functions?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The new road transport advisory group will be established to advise the Fair Work Commission in relation to matters that involve the road transport industry. The minister will appoint the road transport advisory group members who must be members of or nominated by registered organisations entitled to represent the interests of road transport contractors or road transport businesses. The road transport advisory group may form subcommittees which may include people with appropriate expertise or experience who are not appointed to the road transport advisory group. This approach allows for additional expertise to be brought in as required—for example, where a proposed order will cover different types of road transport work. So it's the role of the minister to appoint people to the road transport advisory group. As for their continued membership, that's a matter for the minister, and I think you referred to the fact that clause 40F(4) allows the minister to revoke a person's appointment to the road transport advisory group. There was a point about the president?

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Making directions—do they have to follow them?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Yes, they do. Just to be clear:

(5) The President may give the Road Transport Advisory Group directions as to the way in which the body is to carry out its functions.

Yes, the advisory group does need to follow those directions.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

Unsurprisingly, we're now into the last five minutes of scrutinising—or, should I say, the lack of scrutiny—in relation to, as I said, one of the most complex and confusing bills to ever come before this parliament. The bad news for all of those employers out there is that this bill directly impacts you.

Last night Senator Paul Scarr gave an incredibly articulate and real example of what small businesses are now going to be going through when they want to bring on a casual employee. There is step after step after step. Senator Scarr said you will now need to go through 25 steps, and then you better pray to God that you actually got it right. Because, in the event that you have incorrectly engaged this person, despite your best efforts as a small business person to pick up a copy of the Fair Work Act—because I know that you do that every night when you go home, because you have so much time—and read it and work out what it means, there will be a penalty to pay.

I think what is most disappointing about this legislation today, though, is that, despite what the minister says, the government hasn't listened to business. You just have to look at the front pages across Australia today. These are not businesses saying, 'We don't want to comply with the laws.' These are businesses that are saying, 'These laws that you are putting in place are going to have a detrimental effect on us.' They don't say that selfishly. If you have a detrimental effect on business, as they have said, certain things flow from that. In the first instance—and you have to see what the rideshare companies are saying, and even Minister Burke admitted this—prices will go up for consumers as a result of this legislation. Labor's legislation is estimated to see prices for food delivery or rideshare services increase by up to 35 per cent. That means that, in a cost-of-living crisis, Labor don't care that their legislation will see the Australian consumer pay more for a service that they need.

But, more than that, businesses—and small businesses in particular—have been clear that they can only take on board so many additional costs. The only thing that they can then do when they are at breaking point is pass those costs on to the consumer. That is what businesses in Australia are saying. Alternatively, there is, of course, another choice: if you're floundering in red tape, you don't understand the complexity, and you are completely confused by what this legislation and tranche 2 and tranche 1 are doing to you, you no longer open your doors. That's not the coalition saying that. The minister likes to keep saying that this is the coalition running a scare campaign. We're out there every day talking to businesses, and, in particular, small businesses. You only have to read the newspapers today or yesterday to see that it is the businesses of Australia—as I said, those people who get up every morning and employ Australians—saying to this government: 'Please, just pause. We cannot cope with any additional red tape. We cannot cope with any additional complexity. And, more than that, we cannot cope with the additional confusion that this is going to create for us.'

But Labor doesn't care, and we accept and know why. This was always about taking away from employers the right to run their businesses in consultation with their employees to work out what the best result for employers and employees actually is. This is all about centralising the employment system in Australia, and you can see that from all of the minister's answers: 'The Fair Work Commission, the Fair Work Commission, the Fair Work Commission, the Fair Work Commission.' They're running your business; you'd better get to know them well.

Progress reported.