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Wednesday, 16 June 2010
Page: 3420


Senator FISHER (9:43 AM) —This is a convenient point in time to take up Senator Collins’s forecast that Australian families will, with the Paid Parental Leave Bill 2010, get certainty as from 1 January. Australian families will not get certainty about much at all under this bill because the government is promising Australian families paid parental leave. They will not get paid parental leave under this bill. The government is promising that the provisions of this bill will result in topping up employers’ existing schemes, yet this bill fails to guarantee that that will occur. There is hardly certainty delivered for Australian families in this bill—indeed, far from it. Whilst we clearly support the spirit and the intent of paid parental leave, what is evident in this bill is yet another example, sadly, of the Rudd Labor government breaking promises and botching their delivery.

What about employers’ potential liability for payroll tax? Senator Collins suggests that the government’s regime will be ready to roll out from 1 January. Well, this Labor government has not started in some cases and certainly has not concluded discussions that it needs to have with state governments to sort out potential liability for employers in respect of payroll tax when employers become the government’s paymaster, as is intended by this bill in its current form. The Rudd Labor government and the various state governments have not sorted out the extent to which those additional payments would add to an employer’s threshold for payroll tax or to the amount on which an employer’s payroll tax liability is assessed. So this is potentially another botched delivery of one of the government’s promises.

What of the government’s promises? This bill breaks two key aspects of the government’s promise to Australian families—firstly, that it would legislate paid parental leave and, secondly, that it would legislate it additional to schemes currently offered by employers. Let us go first to the prospect that the government’s parenting payment, which is what this bill is about, will always be additional to existing schemes. The government promised this, but the bill does not compel this outcome. Worse than that, the government’s bill fails to clarify how the parenting payment under this bill will interact with existing schemes. There is no certainty in that for Australian families and there is certainly no certainty for Australia’s employers.

Senator Collins, as the government’s Special Adviser for Work and Family Balance, was quoted in the Australian Financial Review on 9 June—after, I understand, she addressed a conference to this end—as saying the government scheme’s 18 weeks at the minimum wage was intended to be on top of existing corporate schemes. Marsha Jacobs reported:

She told a Diversity Council of Australia event that this intention was not in the legislation but that employees would not view favourably employers that used the payment to reduce the benefits they paid.

Well that may be so, but, Senator Collins, if the Rudd government has the courage of its policy convictions why is this promise not in any of the Rudd government’s legislation?

The article goes on to quote Gilbert and Tobin’s senior lawyer, James Pomeroy, as saying:

 … there was a “reasonable argument” that companies that provided paid parental leave by policy, rather than in a contract or enterprise agreement, could withdraw the policy or change it.

It is very clear from evidence given by the Department of Education, Employment and Workplace Relations and the Department of Families, Community Services and Indigenous Affairs to the Senate Community Affairs Legislation Committee inquiry that, once an employer is in receipt of a payment from the government intended for a worker entitled to receive the parenting payment, there are provisions in the bill to compel the employer to pass the payment on. But it is equally very clear that there is nothing in this bill or in any of the Rudd government’s other legislation that prohibits or prevents an employer from using that payment in full or part satisfaction of their obligation to an employee in respect of parental leave. Indeed, why would an employer not contemplate doing so? Why would a small business not contemplate setting one off against the other when, after all, the Rudd Labor government scheme is funded by taxpayers, and small businesses are taxpayers? Particularly, why would they not contemplate it when there is nothing in the bill to prohibit it happening? If the government means what it says, if it has the courage of the policy conviction that its parenting payment will be additional to existing schemes offered by employers, then why hasn’t it tried to legislate it?

The second aspect of the government’s broken promise that I want to focus on in the few minutes remaining is that this is supposedly a paid parental leave scheme. It is not. The government promised that the scheme meant what it said: paid parental leave, not a government handout. But that is what this bill is about, and it is all that this bill is about. It is about money, money, money; it ain’t about any sort of leave. Professor Andrew Stewart, who gave evidence to the Senate inquiry into the bill, said that the bill would better be called the ‘parental payment bill’ than the Paid Parental Leave Bill. I could not agree more, given that the bill creates a right to payment but not to leave from work. It does not create, preserve or guarantee a right to any sort of leave to accompany the 18-week payment yet the government continues to hold out that paid leave is being delivered under this bill. An 18-week payment is delivered under this bill but not an 18-week period of leave.

Why does that matter? It matters in respect of workers who are eligible to receive the parenting payment—let us call it that because that is what it is—under the Paid Parental Leave Bill but are not guaranteed commensurate parental leave as of right by their employer. Workers in that invidious position have to decide if they want to receive the government’s parenting payment, because if they want to get the payment they cannot be at work. They have to decide if they want to receive the government’s parenting payment and be prepared to quit their job for the duration of that payment so that, after all, they can achieve what should be the object of paid parental leave: help with work and family time and bonding between dad, mum and bub. It should be about family, mum and bub, but the legislation is more about money. This bill places some workers in the invidious position of choosing, potentially, to quit their job in order to access the government’s parenting payment. In the words of Professor Andrew Stewart:

The title of the Bill is a misnomer, since the proposed scheme does not confer any entitlement to paid leave … There will be workers who can receive payments, but cannot take leave from their existing jobs … This means that an employee—(could face)—

I inserted the words ‘could face’ without affecting the meaning—

the prospect of having to quit her job without any guarantee of a return to work … It is hardly unreasonable for employees (or indeed employers) to believe that a right to ‘paid parental leave’ means what it says!

I could not agree more. If the government really means its promise that this legislation delivers paid parental leave, then why has it not tried to legislate as such? Particularly, why does it not legislate as such when Senator Collins opposite criticises the coalition in respect of stay-at-home mums?

What this legislation does in failing to ensure leave for every worker eligible for the parenting payment conferred under the legislation is potentially add to the queue of stay-at-home mums. It adds to the queue of stay-at-home mums those workers who are in the invidious position of not being guaranteed leave to accompany their entitlement to the parenting payment. It places those workers in the invidious position, as I said before, of choosing to quit their job or forget about the parenting payment. And, if they quit their job, where are they? They are essentially in the queue of stay-at-home mums, courtesy of the Rudd Labor government. That is what this legislation does and it is about time that the government faced up to that and admitted that this is a paid parenting bill rather than a parental leave bill.

We have got botched delivery in terms of the uncompleted negotiations with states in respect of payroll tax. We have got two broken promises because this legislation is all about money and little about leave, and breaks the promise that the 18-week parenting payment will top up existing employer schemes. If the government means these promises, why hasn’t the government tried to legislate them? The government knows that it cannot comprehensively and universally legislate either of those two things in this legislation. And why not? Because each of those two things goes to the heart of workplace relations matters: guaranteed leave from work and preventing an employer from satisfying, in whole or in part, a workplace relations obligation through some other means. Both of those things are properly the province of workplace relations laws. And guess what? The federal government gloated about its successful referral of powers deal with the various states to the Commonwealth at the end of last year, and indeed this parliament passed laws to that end. But part of the deal over which the government gloats compels the government to have detailed consultations with the states prior to amending its workplace relations law and, in this case, its Fair Work legislation.

The government has bound itself up in red tape as part of the deal it did to get the states to refer their workplace relations powers. That red tape is around the amount of consultation needed, the amount of time it will take and the ability for states to potentially veto workplace relations amendments by the federal government. Once again the federal government did not really think about it until the eleventh hour. It did not realise until too late, I would suggest, that it could not comprehensively keep these promises by putting provisions in this legislation. The government could not comprehensively and universally ensure both those things in this legislation but it woke up to that too late. It is another botch. It has now woken up to it. It has realised that it would be behind the eight ball were it ever to contemplate keeping those two promises by adding them to amendments which it has said it is in the process of attempting to make to the Fair Work legislation and in respect of which it has kick-started consultation with the states.

The government has realised too late that it cannot keep its promises by amending the paid parenting bill in those respects, and it has also realised that it has left it too late to do so through the Fair Work legislation in time for the paid parenting bill to kick off on 1 January next year. With that not particularly favourable prediction about how the legislation will hit the deck in practice as of 1 January, if it be passed by this parliament, I express my regret that, while I support paid parental leave, this legislation is not about that. I express my regret that this is going to be yet another example of the Rudd Labor government’s broken promises and botched delivery.