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Monday, 22 March 2004
Page: 21539

Senator HUTCHINS (5:42 PM) —It is with pleasure that I follow my colleague and fellow New South Wales senator Michael Forshaw in today's debate. This is the second occasion we have debated the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2]. I hope it goes the same way it did on the last two occasions—to the dustbin. Senator Forshaw articulated quite clearly and comprehensively that the reason this bill must be defeated is that, if it were carried into law, the state tribunal would set the day-to-day employment obligations of people, say, in my state yet the federal system would be used for unfair dismissals for these same people.

There are significant differences between the approach of the New South Wales legislation and the approach of the federal legislation. The most obvious is that one was drawn up by a progressive government; the other was drawn up by a regressive government. Nevertheless, the first difference is that within the New South Wales jurisdiction, which covers about 70 per cent of employees in New South Wales, there is the provision for statewide award settlements. That is not the case in the federal jurisdiction at all. These settlements can either be reached by agreement or be arbitrated. Currently there are a number of wage negotiations going on in the state of New South Wales to that effect. The second difference is that to be covered by the proposed federal legislation as a casual worker you would have to have been a casual for 12 months, rather than the six months required in the New South Wales jurisdiction. I will speak about casuals a little later in my contribution because that is something that we as a community need to start thinking about more seriously.

The third difference between the New South Wales and the proposed federal legislation is what are called deemed employees. Under the New South Wales act there are certain groups of people who are deemed employees. The most outstanding, of course, are clothing outworkers, cleaners and building tradesmen. They are deemed employees because of the category of work that they conduct on behalf of their employers and the particular employment relationship they have with their employers. Probably the most exploited, underpaid and mistreated people in the working community are outworkers, an overwhelmingly large majority of whom are from non-English-speaking backgrounds. They are mainly from Asia and are mainly women.

The New South Wales jurisdiction has sought to deal with the difficulties of these workers by allowing them access to New South Wales tribunals, but nowhere in the proposed federal legislation is there any reference to this group or class of workers. In particular, the issue of clothing outworkers deserves the attention from the federal government that it has received in the state of New South Wales. As I say, under the New South Wales act, outworkers, cleaners and building tradespersons are deemed employees because of the nature of the employment relationship they have with their employer. The fourth difference is with respect to injured workers seeking to return to work. I am not aware whether there is any provision for injured workers in the proposed legislation before us this afternoon.

Let me reiterate those four points of difference with the New South Wales legislation: the provision for award settlements; that casuals are able to be reinstated after six months employment, not 12 months; that employees are deemed to be employees if they are outworkers, tradespersons and cleaners; and the particular category of employee concerning injured workers.

Another difference that I am probably more familiar with, and which seldom gets mentioned by the government or speakers in this debate, although I have mentioned it before, is the other category of worker in the New South Wales jurisdiction that is not referred to here and the ability in that jurisdiction to deal with that category of worker—I say `category of worker'; lawyers might use a different term. I am referring to lorry owner-drivers—and Senator Ferris would be aware of this issue—or, as they are called in the New South Wales legislation, contract carriers. Those people, and they are predominantly men, have had the ability for nearly 25 years under the jurisdiction in New South Wales to be reinstated if they were wrongfully dismissed by their employer.

This group of employees is required by their employer—the `principal contractor' as that person is referred to in the New South Wales legislation—to have a particular type, design and weight of vehicle. That vehicle has to be painted in company colours. That person has to be contracted by one company for whom their vehicle is painted. They are subject to the control and direction of the principal contractor and they can be, and have been, dismissed for any misdemeanour.

Throughout the history of dealing with this matter in New South Wales there has been a bipartisan approach by the major parties in reforming the legislation to allow for this category of worker to be able to seek redress and justice if that is required. As I said, these men are required to paint their vehicles in particular colours. You have all seen them on the road—concrete trucks with Boral or Hymix painted on them and vehicles with TNT, Mayne Nickless, Toll or other major contractors' names painted on them. For all intents and purposes, you and I would not know the class of work that that person is contracted for by their principal contractor unless we asked them. They wear the uniform of the major company, their vehicle is painted in the major company's colours and they are also subject to the direction and control of the major company.

In chapter 6 of the New South Wales industrial relations legislation there has been for some time the provision for lorry owner-drivers or contract carriers to go to the New South Wales commission and seek to be restated if they believe that they have been unfairly dismissed. On a number of occasions in my previous occupation I went before those tribunals and argued on behalf of those people. Sometimes they were reinstated because they had been unfairly dismissed and sometimes they were not, because the judge made the decision that they had been dealt with properly. So in the New South Wales jurisdiction there is the ability to have this particular class or classification of worker dealt with on the issue of unfair dismissal. But it even goes further than that—under chapter 6 of the New South Wales legislation, this class of worker can go before the New South Wales Industrial Relations Commission and argue the case of unfair contracts. The worker has that recourse to a commission, which is not available to any other group of person in this category throughout the country as far as I am aware.

There are some glaring holes in this legislation. When people refer to termination of employment, they want consistency between federal and state jurisdictions, particularly my state of New South Wales. The ability of lorry owner-drivers or contract carriers to be reinstated and to have their contracts dealt with by a commission has been part of the New South Wales structure for nearly half a century and has been the subject of consensus amongst the major parties. In fact, it was only a few years ago, when there were disputes concerning the payment of goodwill, that legislation was introduced to the New South Wales parliament by the member for Auburn, Peter Nagle. The legislation was passed and allowed lorry owner-drivers to argue their cases for goodwill before Industrial Relations Commission judges in a tribunal set up by the New South Wales parliament. Once again that was as a result of consensus between the major parties. This was not a contest between the Labor and Liberal parties; this was seen to be sound public policy, and legislation was passed with goodwill from both conservative and Labor members of parliament. So there are two classes of workers that are not covered by either the New South Wales act or the proposed federal legislation. These are outworkers—probably the most mistreated, abused and exploited group of workers in the community—and lorry owner-drivers, who have been dealt with for over half a century under the jurisdiction of New South Wales.

I now want to come back to the issue that concerns casual workers. Senators would be aware the Senate Community Affairs References Committee has just completed an inquiry into poverty and financial hardship. During that inquiry we had a significant number of submissions from men and women throughout the country who are casual employees. These are people who want to be permanently employed; they desperately want the opportunity to have a full-time permanent job, but it is not available to them. During the past 20 years the percentage of casual employees in the work force has increased from 12 per cent to 28 per cent. The rise has been more rapid in the last decade. People no longer have the opportunity for permanency that you and I, Mr Acting Deputy President Cherry, would have taken as a right when we were young men.

I want to take the chamber's time briefly to relate to senators what men and women around the country are experiencing. These people told their stories to the inquiry as it travelled around the nation. On 26 May in Sydney, Mr Leeman gave evidence to the inquiry. I will read out excerpts of this so that you can get an idea of what working life is like for people who are not in a strong bargaining position. I will say that again: this is what it is like for people who do not have a strong bargaining position. The federal government's proposed legislation is trying to make it even more difficult for them to have rights and some sort of dignity. Mr Leeman said:

I would like to start by briefly explaining a bit of my work history and then go through some of the issues that have come up over a period of time. I have worked for about four different labour hire companies and I have signed up to 12 over that period as well. With those four I have worked at six different workplaces over the last five years, and I have also had a couple of permanent jobs during that time as well. The things that I have been concerned about during that time as a labour hire employee are issues of occupational health and safety, of being able to know what my rights are as an employee—particularly I could not even get hold of the award that I am covered by—and also the quality of work, and obviously that leads to the quality of life as well: not having much control over the hours that I work and being forced to work a lot harder than I normally would because one is not quite sure when the work is going to come again.

He went on to say:

It is very hard to get information on what rates of pay we should be receiving and what loading and that sort of thing. When I was working at BHP for Skilled Engineering we were required to fill in our own time sheets. Unless you actually knew what rates of pay you should be receiving at different times of the day, over the weekend, award rates and so on—the different loadings—you did not receive them. There were a number of employees who did miss out because they did not know what those things were. It was very much up to each individual to go and get that information.

That is part of what Mr Leeman told the committee. I would now like to read out what Mr Spencer said when he appeared before the committee in Adelaide on 29 April last year. Mr Spencer said:

I am 54 years of age. I am a cleaner and an LHMU member. Until recently I worked at the Myer Centre. I had worked there for 10 years, through three different employers as the contracts kept on changing. About six weeks ago I was made redundant. I was one of 15 people who were retrenched when the contract changed. Twelve of us were over 40. We were cleaners with lots of experience. As a result of losing the job and of having three different employers over the 10 years that I worked on the one site, I have no long service leave, because each employer has committed it, but the long service leave is not portable. It makes life really difficult.

Around Australia the inquiry heard similar tales from men and women who are what we now call the working poor. These people are the ones that we should be paying attention to. We should try not to deprive them of the few rights that they already have.

Mr Spencer has had three different employers in 10 years and he is over 40 years of age—that is the changing face of Australia's work force. As I said, 20 years ago about 12 per cent of the work force was casual and now it is 28 per cent. We have this scourge of labour hire agencies out there that provide people with no permanency whatsoever. God knows what is going to happen if this legislation is carried. Workers will have to be with their employers for 12 months before they have any rights. As Mr Leeman said, he has worked for a variety of labour hire agencies over a five-year period, but he will never actually qualify for benefits under this legislation, if it passes the 12-month rule, because he does not have one permanent employer. Mr Leeman and Mr Spencer are not working as accountants or in the finance or banking sectors. They are doing the jobs at the low end of the work spectrum—generally the low-skilled and low-paid jobs. I am very concerned about what has come out of the inquiry into poverty and financial hardship that you, Madam Acting Deputy President Knowles, and I have sat on over the last 12 months.

In summation, I cannot see any obvious practical reason why you would change the legislation as it stands in the various states. I have spoken to a number of employers on this issue, and they believe that there is no benefit in them being burdened with some cumbersome federal system when there is a workable and proper state system already in place. It has been proven that in a number of areas in New South Wales the legislation to look after classes of workers or employees has been changed with the consensus of the major parties. It has not been seen as an opportunity to play some sort of political game with people's lives. It has been done because it was sound, practical policy and because it was effective for those men and women and their employers in the areas in which they worked.

I have highlighted the significant differences between the New South Wales and federal legislation. I come back to the point that Senator Forshaw ended on: if this legislation is carried, an employee who claims unfair dismissal will be going down to William Street in Sydney to the federal commission but their terms and conditions and employment obligations will be set by another jurisdiction altogether. If that is the case, it is only commonsense to make sure that people are in one area together.

I mentioned earlier that I was concerned about the working poor. This is an opportunity to highlight to the Senate how that situation affects them. It would appear to me that, with the growth of casual employment in this country, particularly over the last 10 years, these men and women are missing out on the so-called economic miracle that we may be experiencing. These are the men and women who are getting the pointy end of the pineapple. They are really finding it tough, Madam Acting Deputy President, as you will recall from the evidence the committee heard throughout the country. These men and women told us how difficult it was for them to make ends meet. Let us not deprive them of any more rights than those we have already deprived them of by casualising the work force.