CLARKE, Miss Sherree, Member, Queensland Nurses and Midwives Union

FOSTER, Ms Josephine, Member, Victorian Trades Hall Council [by video link]

GIBSON, Ms Julien, Member, United Workers Union [by video link]

O'NEIL, Ms Michele, President, Australian Council of Trade Unions

ROBERTS, Mr Tom, Director of Legal, Research and Policy, Australian Council of Trade Unions

ROSSETTO, Mr Mark, Delegate, Australian Manufacturing Workers Union

Committee met at 08:30

CHAIR ( Senator McGrath ): I declare open this hearing of the Senate Education and Employment Legislation Committee inquiry into the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020. This is a public hearing and a Hansard transcript of the proceedings is being made. The hearing is also being broadcast via the Australian Parliament House website.

Before the committee starts taking evidence, I remind all witnesses that, in giving evidence to the committee, they are protected by parliamentary privilege. It is unlawful for anyone to threaten or disadvantage a witness on account of evidence given to a committee, and such action may be treated by the Senate as a contempt. It is also a contempt to give false or misleading evidence to a committee.

The committee generally prefers evidence to be given in public, but under the Senate's resolutions witnesses have the right to request to be heard in private session. If a witness objects to answering a question, the witness should state the ground upon which the objection is taken and the committee will determine whether it will insist on an answer, having regard to the ground on which it is claimed. If the committee determines to insist on an answer, a witness may request that the answer be given in camera. Such a request may of course also be made at any other time.

I now welcome representatives from the Australian Council of Trade Unions, appearing in person, and the Victorian Trades Hall Council, appearing via teleconference. I understand that information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. I now invite a short opening statement, and at the conclusion of your remarks I will invite members of the committee to ask questions. To assist the committee, I'd prefer short opening statements, one from the ACTU and one from the Trades Hall Council, please, so we can get straight into questioning.

Ms O'Neil : We have kept our opening statements very short, but the workers who have come today have a very short opening statement to make that they've prepared in advance.

CHAIR: They can table it, then, if that's possible.

Ms O'Neil : I don't think it is possible to table it. I will be very, very quick. Let's see if we can do it rapidly, if that's okay.

CHAIR: You were asked for opening statements to be kept to two minutes—one two-minute opening statement from the ACTU and one two-minute opening statement from the Trades Hall Council.

Ms O'Neil : I wasn't aware you were going to limit it to one, and we have kept it to below two minutes.

CHAIR: You were advised that the opening statement would be asked to be kept to two minutes.

Ms O'Neil : That's right.

CHAIR: The purpose of this hearing is for senators to put questions to witnesses—

Senator PRATT: Point of order, Chair: all my initial questions are to be directed to the workers. We often hear two-minute answers to our questions, so if you want to hear from the ACTU I can commence with questioning to the workers.

CHAIR: If that assists, that would be fine. We can have one two-minute opening statement from the ACTU and one two-minute opening statement from the Trades Hall Council, and then I will hand over to Senator Pratt, who can ask her questions.

Ms O'Neil : Thank you very much. Good morning. I want to thank the Senate for its preparedness to put this bill under proper scrutiny. Appearing with me today are Sherree Clarke, an assistant in nursing at a private aged-care facility, and Mark Rossetto, a manufacturing worker who was recently made redundant. On behalf of the Victorian Trades Hall Council we have Josie Foster and Julien Gibson, two hospitality workers.

All Australians deserve to fully understand the impact of new legislation, and this is especially important when the impact of that legislation reaches deep into their pay packets and reduces their rights at work. Our submission provides the details of our opposition to the bill, so I'll use my opening statement to focus on major ongoing concerns in the context of these broader questions: Who is this bill for? What will it achieve? And why now?

Many Australians are anxious and uncertain about their jobs. JobKeeper, still so desperately needed by so many small-business and 1½ million workers, is about to go. The economic recovery claimed by the government is not universally experienced and is leaving many Australians behind. Then there is this bill, which fundamentally shifts more power to big business and will further suppress wages. Why would the government, who promised we were all in this together, choose this path?

The ACTU wants to thank crossbench senators for their advocacy on behalf of workers that has resulted in a small change—the removal of the suspension of the BOOT by the government. But we fear the government will use this as window dressing, while this bill remains fundamentally flawed. Bargaining rights will be stripped from workers, and the Fair Work Commission's role in scrutinising agreements for fairness will be reduced to a tick-and-flick exercise. The rights of casual workers will be reduced, with a casual definition that will increase job insecurity. Part-time workers will lose pay and certainty, with the changes predominantly hitting women. Tradies will be left with fewer rights than all other workers, and businesses will be able to continue to use the emergency JobKeeper changes in workers' duties and place of work without the payment of JobKeeper or the protections that previously applied.

This bill will take workers backwards. At the very time our country needs certainty and confidence, when small businesses are needing people to spend, this bill will enshrine insecurity and suppress wages for years to come. This is not the road to recovery. This will not create one job. We urge the Senate to reject this bill in its current form. I'm happy to take questions on any matters related to our submission.

CHAIR: Thank you. Can I have an opening statement from the Victorian Trades Hall Council, please?

Senator PRATT: I think in this case the workers that wanted to speak to us are both from the Victorian Trades Hall Council; is that right?

Ms Gibson : Yes.

Senator PRATT: Okay. Ms Gibson, did you want to tell us about your experiences?

Ms Gibson : Yes. I really value the opportunity to share with you all my experiences and why I'm asking to you to reject this bill. I've worked 16 years in the hospitality industry. I've worked in cafes, pubs, fine dining and clubs. From part time to full time to casual, I've climbed the skills ladder from kitchenhand to chef de partie.

The only good job I had was when I was 22; I worked for a small business, a local pub. It had fair wages paid by the hour, time sheets, payslips and penalties. Our employer looked after us and the business thrived. I wanted to stay longer, but to build a career as a chef you have to keep on moving. I went to one of the best restaurants in town, owned by an illustrious celebrity chef. Here, I was taught the industry standard: 12-hour unpaid trial shifts; time sheets frowned upon; unpaid overtime; super never paid correctly, if at all; no breaks; no penalties; and rostering that impinges on workplace safety. Whenever I asked for my entitlements, the typical response was: 'Everyone is replaceable. Do you want this job or not?' The last straw for me was when I was sexually harassed. I left my dream job; it had turned into a nightmare.

For years every hospitality job was the same. After speaking with former colleagues, industry friends and union mates, we concluded that, it would seem, hospitality was never going to change. So I applied for university. I went from full-time to casual whilst undertaking a bachelor's degree. Getting sick, however, is a luxury a casual can't afford. When I broke my hand I wasn't entitled to sick leave. Centrelink took six months to pay me the benefit. If I didn't have the support network, there would be no way I would be able to cover my rent and bills during this time.

This is what you have to choose between as a chef: either you forfeit your self-respect and work for below the award, or you forfeit your rights, entitlements and safety nets. After a decade of experiencing wage theft, it took my fellow workmates and I coming together to fight back. I got back over $15,000 for only two years of work out of my entire career. That money has been life-changing. It might not seem like much to you, but a safety net meant I could plan my future and make healthier choices for myself, something that chefs rarely have the opportunity to do.

When Victoria introduced legislation criminalising wage theft, I cried. Finally, workers were going to have something solid and strong that couldn't be manipulated or be met with wilful ignorance and poor excuses. Finally, there was hope for my friends and colleagues. But, now, along comes this bill, and I'm sick to my stomach. This legislation is a kick in the guts to workers like me, who have already been brought to our hands and knees well before the pandemic arrived. We are tired and battle-weary from decades of fighting for our basic rights and entitlements. We've suffered gaslighting, wage stagnation and exploitation, and now you want to put forward a bill that further entrenches these abuses? On behalf of my fellow hospitality workers, how dare you!

My experiences are not unique. There are so many businesses in the hospitality industry who undermine good businesses and who treat their staff as expendable and disposable. All this legislation does is make it easier for those businesses to continue on and increase their power over workers. All this legislation will do is ensure workers like me will continue to be exploited, wage thieves will get away with it and our economy will take even longer to recover. Thank you.

Senator PRATT: I have to say that's very consistent with the experiences of my partner, who also has had a long career as a chef. Ms Foster, would you like to speak now?

Ms Foster : I really appreciate the opportunity to be here today. I have almost a decade of experience working in the hypercasualised hospitality industry, and up until my last job it was just expected that I would be ripped off. The stories that I've heard from other friends are similarly bad, or even worse. Recently, a friend told me of how she was fired for warning her boss that she had been directed to isolate for 14 days. She had worked there for five years. She had worked incredibly hard and was a favourite of most people who came in. She was fired for following the rules that have kept us safe.

Are these the small businesses giving advice on how to grow jobs? My final job in hospitality was amazing. I was paid properly and treated so well that I didn't want to leave. This business is thriving, and it's because of how they treat people: no-one is disposable. It's actually bad for small businesses to have lower wages, and the attitude of being able to replace people at the drop of a hat actually hurts us all. It's a race to the bottom. Lower wages mean people don't spend money, which means these same small businesses suffer even further. It's because of the great love for the business I worked for, and my experiences over the years, that I'm speaking with expertise. I'm speaking from experience. If you have a law that treats workers badly, we all suffer from it. With COVID, it means that people come into work sick or they're pressured by their bad bosses to work when they shouldn't.

So I suggest that when laws are changed in industrial relations the businesses that are actually treating their workers well to start with are the ones who are consulted, because they would tell you a more complete story. We actually need positive reform that helps the businesses doing the right thing. I'm here on behalf of so many young workers who haven't been able to share their stories. The collective wealth that they would have had stolen from them maybe would have bought them a few more seats at this table.

I'm also here on behalf of those who know that small businesses run because of their workers being treated well. I know that these businesses have gotten through the crisis better, because they've had more people who could be covered by JobKeeper, because they didn't have so many casuals who hadn't been there long enough. I'm here to protect people in other industries too, because they are becoming hypercasualised as well. I don't want anyone else to suffer this through their work. I don't want the hospitality industry to become standard across the board. I'm asking you to stand with workers and with genuinely supportive bosses to reject this bill. Thank you, senators, and thank you, committee, for listening to me.

Senator PRATT: Thank you very much, Ms Foster; I very much appreciate that. I know we've got some worker representatives before us this morning as well. So, very briefly, Mr Rossetto, I would very much like to hear from your experience in the print industry.

Mr Rossetto : Good morning, senators. I would like to tell you about my experience as a delegate during bargaining for our recent agreement. For 27 years I worked at one of Australia's largest magazine and catalogue printers. My role was a pre-press operator, preparing digital plates to go to press. When COVID hit before JobKeeper, workers agreed to cut their hours up to 60 per cent to help our employer through tough times. But when it came time to begin negotiations on a new agreement, my employer was not interested at all. After conciliation with the Fair Work Commission fell through, the company applied to terminate unless we agreed to reduce our redundancy entitlements back to the NES. At the same time, the company said 300 jobs would go. This was like bargaining with a gun held to your head. They said they could not afford to pay the redundancies at the EBA rate without going broke. We agreed to a new EBA that halved our redundancy, knowing it would cost us thousands of dollars so that our co-workers could keep their jobs We were totally blindsided by the company after taking a pay cut to help. If it wasn't for our union negotiating, we would have lost everything.

My fear is that if this bill is passed, big business will have even more power to reduce pay and conditions for working-class people. The ink was not even dry on the agreement when the company applied to the courts to split up the business, leaving redundant workers in an insolvent company, with our entitlements now to be paid by FEGS, including mine. To this day, workers are still waiting for their FEG payment without any finances over Christmas and the New Year period, while this business rolls on, having $40 million injected into its veins by its investors. Clearly this company could have paid full entitlements to its long-serving employees but chose not to. If this bill goes through, I fear that workers will no longer have the confidence they can be better off. Working people's lives will be affected by big business, like my company, which will be allowed to reduce workers' rights, pay and conditions even more than they already have.

Miss Clarke : I have worked in aged care as an assistant in nursing for more than 20 years. My current employment contract is 16 hours per fortnight. I consistently work above these hours but I cannot rely on it. Because most of my work is so insecure, I can only plan to live on my minimum contracted hours, and a contract of 16 hours per fortnight is not enough to live on. This impacts all aspects of my lifestyle, including health. My budget does not allow me to choose healthy options and I often miss meals. Paying my car registration or visiting my dentist is a day-to-day decision for me. There are not just monetary but also social and personal impacts of these work styles. I am unable to support my elderly parents as there is no consistency to my hours and I cannot plan ahead. I was unable to complete my bachelor of social work as I could not afford to turn down offered shifts. As a single middle-aged female, I found myself living in temporary accommodation in a caravan park. I have been unable to secure a long-term rental lease because I don't have a guaranteed income. As a low-income worker, I'm not alone here. Where I live, most people are low-income, insecure workers. I have met seven other aged-care workers in the caravan park. I am already the working poor, and this bill could disadvantage me further. I feel that I am under constant threat of losing penalty rates and other conditions and, without these, I would be unable to continue working in aged care.

It is a great honour and privilege to share a person's final journey. Our older generation deserves better, to be treated with dignity and respect, but so do the people working in aged care. We need laws that properly value aged-care work and provide aged-care workers with secure jobs and fair pay. This bill will already make a broken system worse. I would just like to request. I've given a full statement but, in respect of time, I've done a written one for you to consider.

Senator PRATT: Thank you very much.

CHAIR: I am sure the committee would be happy for you to table that.

Senator PRATT: Before I hand over to my colleague in the little bit of time that Labor has left, I want to ask Ms O'Neil, as President of the ACTU: these workers have had negative experiences in the existing system, so how will this legislation specifically make their situation worse?

Ms O'Neil : As you heard from the witnesses this morning, we already have a problem in Australia with insecure work. What we are concerned about is that these changes will actually entrench both insecurity and suppression of wages and it does that in a number of ways. Firstly, in relation to bargaining, even with the removal of the suspension of the BOOT from the bill, the remaining bargaining provisions are still going to drive down wages, in our understanding, and that's because it removes really important protections that allow workers to fully understand what they're voting on, to be able to be represented in negotiations, and to ensure that the Fair Work Commission is able to thoroughly examine whether the agreement is consistent with the National Employment Standards.

Senator PRATT: So Mr Rossetto's experience in the company that he works for would be quite telling, even though, in the existing system, wages were being pushed down through the cancellation of the award, they could have been precluded and kind of held back from participating at all in that kind of dynamic?

Ms O'Neil : One of the really critical protections in bargaining is that workers know they're bargaining This bill delays even the notification four employees that bargaining has commenced and that they've got a right to be represented by four weeks. In some cases the bargaining would be over by that time. It also removes detailed requirements in the act for a good reason about ensuring that people really understand, and that includes things like providing information in languages other than English.

It also changes the provisions that are there for good reason—to ensure that people know when the vote is going to happen and that all workers affected are able to vote. And really importantly, it not only removes that scrutiny by the Fair Work Commission but it also removes unions' rights to appear. So if there was a substandard agreement that had been negotiated without union involvement, we will no longer have the right to appear in front of the Fair Work Commission and outline why the agreement is going to be a disadvantage to workers.

Senator PRATT: Goodness.

Senator O'NEILL: Could I go to the question of casuals, because this really is at the heart of the bill and many people say that, actually, this is a big reason why the government has advanced the bill. I ask you specifically: what do you see as the main problem with the definition of 'casual employees' in the bill and who will benefit from the definition that is proposed at this point?

Ms O'Neil : We are concerned that the definition that has been inserted into the bill does not reflect in fact decades of common law clarity about casual employment. And what it does is give primacy to what happens at the commencement of employment in terms of the offer of employment and how that offer is made, including what the job is called but other factors as well, rather than the experience of what happens to a worker over time in employment. What we know about casual workers, and is many times the case, is that they may believe that their job is casual—it may even start out as casual—but increasingly we are seeing in our country casual jobs become permanent jobs without the corresponding entitlements or rights being given to the worker. So this will in fact enshrine that problem, particularly for big business, because it will be big businesses, those that have good lawyers that understand the detail of this act, that will be able to use the provisions, the definition, to ensure that the workers that they employ never trigger the right to be a permanent worker. Would you like to add to that, Tom?

Mr Roberts : I would just add to that by saying that the other beneficiaries of the casual changes will be those employers who have consciously misclassified their employees as casuals because the definition, of course, applies retrospectively. So, for those people who have been misclassified and are owed entitlements, those entitlements will be retrospectively extinguished.

Senator O'NEILL: It's quite extraordinary to act in this way—retrospectively—isn't it?

Mr Roberts : It certainly is not the norm. As legislators, you would know that the usual thing is to legislate prospectively.

Senator O'NEILL: We've heard quite remarkable stories this morning from workers. I congratulate them on their civic leadership. Standing up and telling their stories is a very powerful thing and I sincerely thank them for being brave enough to do that and for going through the journey of preparing their statements for us. We heard about good businesses and we heard about profoundly exploitative businesses here, so we shouldn't tar the whole business sector with one brush. Ms Gibson spoke about a great employer where she had great conditions. The reality is this bill is going to give both good small-business owners and bad small-business owners the right to say if you're casual or if you're not at the minute you start your job. Is that what this bill will do—take away from workers the power to understand what's happening to them?

Ms O'Neil : What it does is create a reversal of what the courts have found about casual work over a very long period of time. The courts have consistently found that the test of whether a job is genuinely casual—and there are genuinely casual jobs in this country, and we support those businesses that need them and those workers that are happy to work in them, but that is not the experience of many workers, as you've heard today. They continue to be called a casual, but the reality of their working life is they're working over long periods of time in regular, ongoing work but are not receiving the benefit of permanent employment. This definition will actually enshrine that, because, rather than looking at the reality of your working life, it gives primacy to what happens when you're first offered the job.

Senator O'NEILL: Thank you for making that so clear. Can I ask one further question about casual conversion, because there has been a lot of debate about this in the public? What's the issue here that you think is important with regard to the intersection between casual conversion, current rights, proposed rights and the Fair Work Commission? Can you lay that out for us?

Ms O'Neil : The concern that we have regarding the casual conversion provision is that it's dressed up to look like an improvement but the reality of it is that it leaves workers without the real opportunity to become permanent workers, and it does that by allowing the employer to say, 'It is not reasonable for me to offer you permanent employment.' The bill says you have to have been employed 12 months. We say that's a long period of time. The last six months has to have been regular employment. And then the employer can say, 'Well, I'm not going to offer you permanency, because it's not reasonable in my business circumstances to do so.' That's a very large loophole, and you can imagine the type of things that many employers would say as to why it's not reasonable and that can't be tested, because the only way that a worker can then say, 'I don't agree with that. Of course it's reasonable. It's a permanent job,' is going off to the Fair Work Commission, which they can't do unless the employer agrees. Can you imagine that, if you're an employer that does not want to give permanent work, you say it's not reasonable and you are not going to consent to go off to the Fair Work Commission and have someone independent challenge your decision. So the lack of a right to arbitration and independent review of that decision is a fundamental flaw along with the loophole.

Senator O'NEILL: Again, to point out the differences between businesses, the stories that we've heard are that this will give the power to determine what's reasonable to employers, some of whom are reasonable but some of whom are completely unreasonable. If you end up with an unreasonable one, you've got no chance of getting anybody to fix that situation; you just have to rely on that unreasonable employer, who we've, sadly, heard described here this morning.

Ms O'Neil : That's right. Of course, this is something that reasonable employers shouldn't be fearful of, because they'll do the right thing. This gives an open door to those who are already acting in an unscrupulous way—already treating people badly in the way that we've heard so graphically described this morning. So it doesn't advantage those people who are the good businesses. In fact, it allows them to be undercut by the ones who are doing the wrong thing.

Senator O'NEILL: How does that work?

Ms O'Neil : This is not the only provision of bill that opens this up. If you are a reputable business person and you're treating people with respect—as you heard, even in the pandemic there has been a huge of cooperation being done between workers and businesses to get through a time that none of us could have expected. But, if you're an unscrupulous employer, the capacity to casualise your workforce and to treat people as casual even though they're permanent workers means that you maintain over the long term the right to dismiss people at whim. That's the key vulnerability of a casual worker: you've got no job security. You can lose your job overnight with no reason even if you've worked for years and years in the same position. Similarly, you don't know how much you're going to earn. This is a problem with the part-time provisions in the bill as well. If this is used in a way where workers have no certainty of what they're going to earn—in the part-time provisions, the removal of the penalties that apply for part-time workers with additional hours and the removal of certainty of hours beyond 16 hours—then you can see that this will drive down job security and literally have cuts in pay for those workers in part-time employment who currently would receive overtime for additional hours worked.

Senator O'NEILL: Thank you very much.

CHAIR: Senator Pratt.

Senator PRATT: Ms O'Neil and Mr Rossetto, in the context of an approach to cancel an award before the Fair Work Commission, how does this legislation intersect with those threats to bargaining? We touched on that as we started, but I'm keen to hear specifically about the threat of terminating an agreement in the context of negotiations under this bill.

Ms O'Neil : There's a small change which extends the period where a termination can happen by three months. Currently, it could happen at the moment of the end of the nominal expiry date of the agreement. It extends it to a three-month period. That is by no means enough of a protection to stop what we heard described by Mark, because it still allows that very real threat that, if you don't agree to reduce your rights and conditions—as you heard, these workers did it believing it would save their jobs. This is such a cruel set-up. Believing it would save their jobs, they agreed to significant reductions in their pay, conditions and rights, because that threat was hanging over them. All this bill does is delay that threat by three months, but it has no impact on its power.

Senator PRATT: Thank you. I now ask the ACTU about greenfields agreements. In terms of major projects, if workers are locked into eight-year agreements and at the outset the types of workers that are able to participate in an initial agreement under this legislation—problems arising on major projects if workers are locked into eight-year agreements. My understanding is that, under the legislation, you can start a new agreement with only a small proportion of the workers who may ultimately work as part of that project initially participating in it and that it will be locked in for some years even if it doesn't fit the industrial context or the skills of the workers who may participate on that site.

Ms O'Neil : In fact, greenfield agreements can be struck before any employees start work. They can be struck by a union and an employer in these sites, but they also can be arbitrated by the Fair Work Commission if no agreement is reached by the union. In fact, they're the only type of agreement in the country that can be struck just by an employer by a decision of the Fair Work Commission. The reality of what happens to workers in many of these projects and sites is that the issues that arise that are to do with rosters—you think of the circumstances in particular of fly-in fly-out workers—are dramatic and not always known at the commencement of the job. Over time it becomes clear there has been—we'll use the terrible example of the Inpex project, where 14 workers took their lives over the life of that project. When that has been analysed as to the mental health risks that exist for workers in these types of circumstances, it's shocking to hear how significant the rostering arrangements, the isolation from friends and family, often the accommodation, services and support that are provided are inadequate.

If you remove those workers' rights for eight years, with these issues that arise over the life of the project, they've got no capacity to say, 'Now that we're working here, we see what these issues are and we need to have them addressed.' We heard very graphically from some of the workers in Townsville about the Barrow Island project, where they expected there 8,000 workers and there were actually 13,000 workers, with insufficient support and accommodation. By doubling the period of time these agreements can apply, you're saying to these workers who are often working in isolated and dangerous conditions that they will have lesser rights than every other worker in the country.

CHAIR: Last question, Labor. Then I will go to Senator Faruqi.

Senator PRATT: If any of my colleagues want it, they're welcome to have it.

Senator SHELDON: I want to go to this question about the criminalisation of wage theft and the practices that occur. Is the proposed legislation effective? Wage theft will be abolished?

Mr Roberts : I think the short answer to your question is that it's very unlikely that, if this bill passes, these criminal sanctions will be used at all. I say that for a couple of reasons. Firstly, many employers, of course, are corporations, and it's notoriously difficult to fix criminal responsibility on corporations. In fact, I think the figures show there are about 2¾ million registered corporations in the country, but, if you look at the 10-year period from 2009 to 2019, you see there were only 580 criminal cases brought against corporations in the whole country. It's very important, then, with that inherent difficulty of making corporations responsible, to frame an offence in a way that will work. Our view is that the way this offence is framed makes it very difficult for that to happen. It makes it almost impossible to prove that this sort of criminal offence has been—

Senator SHELDON: What would be a more appropriate way to deal with wage theft?

Mr Roberts : There are a number of ways you can deal with wage theft, including the civil sanctions that exist at the moment, but what we're saying is that, if the government were serious about a criminal sanction for wage theft, they wouldn't frame the offence in the way they have, where you have to prove that the person who committed the offence not only did it dishonestly by ordinary community standards but did it knowing that they were doing it dishonestly by those standards. How on earth do you prove to that sort of level? That's completely different to the Victorian legislation, which has the usual definition of 'dishonesty', which is just 'dishonest by ordinary community standards'. It's inconsistent with what's in the Corporations Act. There's a bill before the Senate at the moment that puts a new definition into the Criminal Code. It is consistent with the Victorian wage theft legislation. How on earth is this going to work?

CHAIR: The call goes to Senator Faruqi.

Senator FARUQI: Thank you for coming to present evidence and especially thank you to Ms Gibson, Ms Foster, Miss Clarke, Mr Rossetto for sharing your stories. The sad truth is that your stories are repeated over and over again—stories of exploitation, wage theft and poor working conditions. I want to assure you that the Greens stand with you and stand with all workers in Australia. Ms O'Neil, I might start with you. Last year, when the government presented the bill, Ms McManus said that the proposal to weaken the BOOT was the most extreme idea proposed during the roundtables between unions and businesses and that, despite 150 hours of consultation, the government hadn't mentioned the idea to unions before putting it in the bill. I know that that has been canned now, but are there other provisions in the bill that took you by surprise?

Ms O'Neil : There are other provisions in the bill that we are very surprised to see, because in fact they were proposals that I would characterise as being put by the more extreme end of the business lobby in Australia and that during the course of those working parties did not receive broad support, not just from the unions but also from some of the other employer groups. So in the intervening period between the end of those working parties and the bill hitting the parliament there seems to have been a shift towards adopting proposals that we think are the ones that in fact were most discredited in this discussions. Those provisions, as we've said, are ones that are really going to result in, for example, part-time workers losing one of the important things that matters, particularly for women workers.

The majority of workers who work part time in Australia are women. Many of them do so because they're trying to juggle caring responsibilities at the same time as work. The provisions that have been put in will mean there will be a perverse incentive that there will only be in the future 16 hours of work given, because it then allows the opportunity for the employer to say, 'If you want any extra hours, any extra work, you have to agree to be part of these extra-hour agreements.' Of course, that removes all the certainty that is so often important for women who are trying to juggle these things. Not many people can live on two days a week, which is what 16 hours is. That notion they'll have a choice to say whether they're going to participate in the extra-hours agreements is a false promise, because, if you're only getting 16 hours guaranteed, it's not a real choice. To be able to earn what you need to look after your family and your responsibilities, you need more than that. What you enter into is something where you lose all certainty. Your capacity to juggle those responsibilities disappears, because one week you might be working 20 hours, the next you might be working 30 and the next week you're back to 16. All certainty about both when you work and how much you earn disappears.

Senator FARUQI: Ms O'Neil, I'm sure the unions raised their high priorities during the roundtables as well. Are any of those reflected in the bill?

Ms O'Neil : The one area where there was consensus agreement and that is reflected in the bill is in relation to being able to recover money—small claims. This is when workers who have experienced wage theft are able to have those small claims dealt with, including in the court and in the Fair Work Commission. That was the one area of consensus.

Senator FARUQI: So there was just one.

Ms O'Neil : And it's one small part of a very significant bill. The other thing I'd say is that, if you look at it as a package, that one small area of improvement does not in any way outweigh how far backwards workers would be taken by this bill.

Senator FARUQI: In parliament, the Attorney-General said that these changes will ensure that workers 'get shifts and get paid more'. What would be your response to that?

Ms O'Neil : That's a cruel fantasy, because there is nothing in this bill that does that. In fact, what it enshrines is the opposite. It enshrines insecurity and a driving down of wages. This makes no sense for the recovery. What we know from the Reserve Bank, what we know from pretty much every reputable economist in the country, is that our recovery is dependent on a recovery in wages and a recovery in certainty and confidence. This bill is actually going to the heart of doing the opposite of that. If you have provisions that mean bargaining is less likely to deliver pay increases because of the nature of the changes, if you no longer have to meet the National Employment Standards or have that properly tested at the point when bargaining is happening, if part-time workers are losing penalties, if workers in greenfield sites can't bargain for eight years, then all of these things are going to suppress wages and increase people's lack of confidence and certainty. This will result in a longer recession and a longer time for small businesses in particular to get back up on their feet. It's low-income workers and middle-income workers who spend their money—and they spend it often—in small local businesses, which are reliant on them having money and the confidence to spend it.

Senator FARUQI: Do you think this bill also undermines the role of unions in improving wages and conditions for workers?

Ms O'Neil : It does it in a number of ways. It removes unions' right to appear in the Fair Work Commission and raise issues of concern with substandard agreements. That's important. There are many examples—some of them are in our submissions and in submissions from other unions—where, in fact, it was unions appearing in front of the Fair Work Commission and raising these concerns that resulted in agreements not being passed that would have left workers worse off. If you take away our voice to do that, if you take away our capacity to turn up and say to the independent umpire, 'What about this?' then you're actually enshrining a lack of representation and rights. Increasingly, you see agreements being struck with no union involvement in the bargaining that have zero wage increases contained within them. If unions aren't involved in bargaining, there are more likely to be agreements with nothing in terms of a wage increase over the life of the agreement. Unlike what was said today, there's no guarantee that bargaining will deliver a wage increase. What delivers a wage increase is union involvement in bargaining and workers knowing they have a right to be represented. One of the changes the bill makes to bargaining is that you don't have to even tell the workers that they've got a right to be represented until one month into the bargaining process. It's that critical role of being able to be represented and have a collective voice in bargaining that delivers real improvements.

Senator DAVEY: Thank you all for come, and thanks to the workers for coming and sharing your stories. I know that sometimes it's a bit intimidating and daunting, but we really appreciate hearing from all of you. You just mentioned the RBA governor. He's also on the record as saying that we should be looking at the flexibility and complexity of our industrial relations system, and he said we should not think of part-time jobs as being 'bad jobs' and full-time jobs as being 'good jobs'. Would you agree with his sentiments and thoughts on those issues?

Ms O'Neil : I absolutely agree with the comment about part-time jobs. Part-time jobs are very important for large numbers of workers who can't work full-time. We're not opposed to part-time jobs. We're not opposed to casual work. But it has to be done fairly and in a way that suits workers as well as their employers. What this bill does, in the guise of flexibility, is actually strip away rights.

Senator DAVEY: We've heard that a few times, and I'm just trying to get to the crux of how it strips away rights. I've also heard, from past witnesses, the concerns about casual conversion. But we've also heard from other people that the ability to convert from casual employment to permanent part-time or permanent full-time gives them certainty. What they want is the ability to choose between continuing as a casual, with the loadings but with the lack of certainty and the lack of entitlements, and converting. They appreciate the choice. But I seem to be hearing from you that you're not comfortable with the conversion factor.

Ms O'Neil : No, we're absolutely comfortable with the point you raise about choice. That's correct. Some workers will say, 'The fact is that I wanted to continue in casual employment.' So that's not our concern. Our concern is this false hope—suggesting that you've got a right to convert when many workers do, without that right having any substance because of this loophole of the employer being able to say, 'It's not reasonable for me to convert you to permanent,' and the worker having no path to the Fair Work Commission to have that reviewed if the employer does not agree.

Senator DAVEY: If you are successful in preventing the passage of these reforms—because my understanding, and I have heard from my Labor colleagues, is that they don't support any part of this bill—have you got concerns that the wage theft laws that have been brought in in Queensland and in Victoria against employers will be invalid to the extent that they become inconsistent with the federal law? We have heard from some witnesses that they're very happy about those wage theft laws in those states. Have you got a concern that those laws can't be applied federally because they're inconsistent?

Ms O'Neil : I'm not quite sure about your question. Do you mean if the bill didn't pass?

Senator DAVEY: Yes.

Ms O'Neil : Tom, do you want to pick that one up?

Mr Roberts : Yes. It's not very clear that those laws would be inconsistent with what's already in the Fair Work Act. I think that's not the case. If it were the case, then the bill wouldn't have specific provisions in it that overrode those state laws. That's the short answer. If the government were really confident that those state laws wouldn't stand, they wouldn't bother specifically overriding them.

Senator DAVEY: Thank you.

Senator O'SULLIVAN: Is the ACTU concerned about non-affiliated unions intervening in enterprise agreements and approval applications, and raising technical arguments to oppose agreements supported by affiliated unions and the vast majority of employers?

Ms O'Neil : What we're concerned about in terms of this bill and its impact is the fact that it will remove the rights of unions or anyone else to appear before the Fair Work Commission and raise those concerns. That's our concern.

Senator O'SULLIVAN: Do you have an objection in principle to part-time employees being able to accept extra shifts and extra hours?

Ms O'Neil : That happens every day, all around the country. All around Australia today, workers who are in part-time employment, who may be, for example, working a 20-hour week part-time arrangement, enter into an agreement to change their contract of employment with their employer to become, for example, a 30-hours-a-week worker. There's nothing in the legislation today that stops that happening. It's a very common occurrence; it happens in workplaces all around the country. So there's already the capacity, by agreement, for workers who are part-time permanent to change their contract of employment by consent with their employer. That's the case today.

Senator O'SULLIVAN: Have affiliated unions always accepted, in enterprise agreements, the ability to do that? In Woolworths and Coles agreements, my understanding is there's a limitation on people being able to extend their hours beyond the 38-hour minimum that they would have.

Ms O'Neil : It's common in agreements—which I'll just remind you are negotiated agreements—where unions and employers will say: 'What's the right balance for how part-time work, casual work and permanent work fit together in our enterprise? And how are we going to make that work so it's fair for everyone concerned?' So it wouldn't be surprising; in fact, it's been changes which limit the number of ways you can bargain around this that we've opposed for a long time. It wouldn't be at all surprising that unions and employers are able to say, 'We think the best mix that's going to deliver productivity, security and fairness is to have limitations on how some part-time, casual and full-time work actually work in a way that works for everybody.' That's a common thing and it should be something which people bargain around to get right.

Senator O'SULLIVAN: I'm quite interested in another point. You know that in practice employers will choose the most cost-effective option in allocating extra shifts, don't you?

Ms O'Neil : No.

Senator O'SULLIVAN: Employers don't choose the most cost-effective—

Ms O'Neil : In my experience, not always—no.

Senator O'SULLIVAN: If part-timers are entitled to overtime and a casual isn't then they'll often ask the casual to work the extra shift first, won't they?

Ms O'Neil : It varies from workplace to workplace. I don't think there's any evidence that suggests there's a common approach to that.

Senator O'SULLIVAN: Is 16 hours necessary, or do you think it should be available, say, to a working mother who currently works part-time for two five-hour shifts a week?

Ms O'Neil : If you're suggesting—and I think some of the submissions suggest—that 16 hours is too much then I reject that as an improvement. What we know at the moment is that there are already provisions in a large number of awards which deal with how part-time work can happen. In fact, by having an award based approach to this you can look at what works by sector and industry—for example, in a clothing factory, where what works there won't necessarily work for a worker in aged care or someone who's working as a teacher. Having award provisions which deal with how part-time work applies, what a fair minimum is, what additional hours can be done and how that operates are already different in awards across the country. That's because they're industry specific and they deal with what works for that industry. What works in one industry is not the same as what works in another.

That's the place. In fact, we have a world-leading system here. We have industry awards that have been proven during COVID to be flexible and adaptable to the needs. That's where these sorts of changes should occur.

Senator O'SULLIVAN: If employers, say, covered by awards in the retail sector do what Woolworths have done and shift more and more employees onto part-time work because of the flexibility that they got from their enterprise agreement, would that increase or decrease secure employment, in your view?

Ms O'Neil : As I said, if it's done with agreement—if people have negotiated fair provisions about how part-time employment works and how flexibility works in relation to that so that it's not one-sided flexibility—

Senator O'SULLIVAN: But does it create more or less security—

Ms O'Neil : I'll just finish that. It depends on the circumstances. If it's done fairly—if it's negotiated and people are represented; if they understand the impacts of it and they've had a say in it; and if that's all been done in a transparent way—and those agreements are reached which deliver both the provisions of part-time work to workers which are fair to them, as well as provisions which work for the employer, then that's what bargaining should deliver.

Senator WALSH: I want to go back to Ms Clarke. You explained so well what it's like to work on 16 hours a fortnight with no guarantee of more hours. This legislation could extend those sorts of work arrangements to everyone in the population by regulation. What do you think that would do to our society, to our country?

Miss Clarke : You are going have a lot more working poor. You're going to have a lot more people in my situation. As an AIN you take away my voice to stand up for the residents, because if I challenge management about conditions that are not so good in the aged-care facility they're not going to offer me another shift. Yes, it might be in my work contract that they can offer me more hours, but if I'm not a compliant worker—I'm good at what I do, but if I challenge the care and the standards for the residents I will lose my shifts. They will give it to the worker who will just go in there and do it.

If my mum is sick and I don't take a shift they offer me they will offer it to the next person, because say [inaudible] they'll get the next shifts offered time and time again. It's a way to keep us removed. As I said, in the caravan park I live in there are a lot of hard-working people who have these work contracts. They are trying to get ahead, but we cannot even get into the rental market, let alone home ownership because we do not have that security behind us. If I go to a bank with a contract that says, 'I am only contracted for 16 hours per fortnight', they're not going to assess me. I wouldn't blame them either. It also affects small businesses because my ethics—I want to be community minded. I want to buy at the small business that's putting their kids through school. If I buy there I might not be able to eat next week. I've got to buy Homebrand or the cheaper brand or what's on special or in bulk to ensure that I've got a safety net there.

Senator FARUQI: During the pandemic we saw that company profits rose by 18.6 per cent, but obviously zero wages growth and thousands upon thousands of workers lost jobs. Do you think this bill is more likely to increase corporate profits than help create well-paid, secure jobs for workers?

Ms O'Neil : It's one of the shocking statistics to come out of the pandemic, that growth in inequality. When there's this notion that we're all in it together but you see the harsh reality of that, particularly big business profits going up. This is not evenly spread even across the business community. It's those big business that are really reaping in what are record profits during the period of a pandemic. Workers' wages as a share of our national economy are at a 60 year low. We've already had eight years of zero wage growth, of wages being stagnant in this country. It was a problem before we hit COVID-19. COVID-19 has worsened it. This bill will be enshrine it in legislation, because it will remove the things that workers used to be able to bargain. It will make bargaining for fair improvements in wages and conditions harder. And, of course, it's those bargains that unions often negotiate in agreements that then flow on and that lift rights and conditions across the community. So the idea that we've seen this really uneven impact with business making record profits, workers losing hours, wages and jobs—and then that the government's response to that is this dog's breakfast of a bill that will enshrine pay and conditions going backwards and make jobs more insecure—is unacceptable.

CHAIR: One last question, please, and then we'll move on.

Senator O'SULLIVAN: Did you support the Labor Party in supporting the demerger legislation last year? And, if you did, are you aware of any unions that may have plans to take advantage of that demerger legislation?

Ms O'Neil : I wasn't aware this inquiry was into another piece of legislation.

Senator O'SULLIVAN: I'm just quite interested in understanding your view. Obviously, you don't agree with this legislation—

Senator O'NEILL: Chair, this is definitely not the topic of conversation today. If we're going to go there, I want to put on the record that Senator Davey's characterisation of Labor's position with regard to this bill was unsophisticated. It's an omnibus bill loaded up with a lot of terrible things that we've heard this morning. There may be a couple of tiny sweeties at the bottom but it's a disaster of a bill.

CHAIR: Senator O'Neill, this is not the adjournment in the Senate. You've got time to give speeches in adjournment in the Senate. Ms O'Neil, have you answered the question?

Ms O'Neil : I have.

Senator O'SULLIVAN: There is a point to this—

Senator SHELDON: Chair, we're discussing the omnibus bill. This is going to affect tens of thousands of workers, tens of thousands of companies across the market, and we need to have questions regarding the bill.

Senator O'SULLIVAN: In terms of this bill, this goes to a point about whether or not fair consideration has been given.

Senator SHELDON: I suggest you might start an inquiry into the issue that you're raising, and then that can be discussed.

CHAIR: What I would say to colleagues is that it is not the position of senators to critique other senators' questions. Senator O'Sullivan has put a question to the witness, and the witness is responding in kind. I would ask that colleagues allow Senator O'Sullivan to put the question, otherwise it's going to be a very long day with senators critiquing each other. Senator O'Sullivan does have the call. He can put this final question. Then, can we please move on to the next witness.

Senator O'Neill: Point of order, Chair: with respect, the question was put and the question was answered. We have passed that point.

CHAIR: I think Senator O'Sullivan was following up in terms of clarifying the question. We could have moved on to the next witnesses now, except for the interruptions.

Ms O'Neil : I understood the question.

Senator O'SULLIVAN: There is a point to my question. Did you support the Labor Party's position on that demerger legislation? They recognised that there was importance in that. For some reason—and you've outlined some of those reasons today—Labor are not supporting any aspect of this particular bill. I'm just trying to get an understanding. I put it to you that it seems to me there might be some more ideological opposition in throwing everything out with this, rather than just considering it and being fair-minded in how we approach this type of legislation to provide greater flexibility.

Ms O'Neil : I reject your characterisation of that in terms of what we're saying about this bill. We've, in fact, put enormous time and effort, over the last 12 months, in terms of putting forward proposals that actually would make a difference—a difference for working Australians as well as for small businesses—towards the recovery. So what's disappointing is that the government chose to listen to the more extreme elements of the big business community in their creation of this bill, rather than the sorts of proposals that we were putting forward and where there may have been some real benefit.

In relation to the other bill, it does nothing to make one job more secure. It does nothing to address wage suppression. It does nothing to address issues to do with our recovery. So, in terms of that bill, it was a bill that was presented to the parliament very quickly and one that we did not form a view of before it was voted on in this parliament.

CHAIR: Thank you very much. That concludes your evidence today. I remind senators and witnesses that we are operating in a COVID-safe environment, and, in terms of the number of people allowed in the room and the number of senators who can be at the table, can you just be aware of that. That will assist Senator Lambie, who will be shifting over to this side of the table. Also, we are going to a videoconference for the next witnesses, so that might mean there may not be space for you in the room.

Ms O'Neil : You're evicting us, Senator!

CHAIR: I'm not evicting you. I'm complying with the rules, as a very good senator.

Ms O'Neil : I'm joking! Thank you very much for your time; we really appreciate it.