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Tuesday, 23 February 2021
Page: 57


Mr BRENDAN O'CONNOR (Gorton) (17:45): I rise to speak against the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 and speak in favour of the second reading amendment moved by the Manager of Opposition Business. This bill has very significant flaws. Even if one were to argue that there were some potential benefits, from what I can see the construction of the provisions of the bill would not provide any real benefits. There are concerns—and Labor has for some time now expressed those concerns—in relation to a whole range of issues that are contained within this bill.

We're aware that the suspension of the better off overall test has been withdrawn, but I think that that provision before its withdrawal by the government underlined and, if you like, exposed the motives of the government to leave unprotected tens of thousands of workers potentially in many sectors of our economy. There was not sufficient protection to ensure that they would not be worse off after entering into a new agreement. That reminds me that in 2005 the then victorious John Howard came to this chamber and, as Prime Minister no less, made a ministerial statement that explained in detail his intentions to change the industrial relations laws of this country and introduce what was then entitled Work Choices. In that speech he talked about removing the no disadvantage test, which was of course the comparable provision to the better off overall test.

As soon as I and others heard that we knew that, if that proposed legislation were enacted, many workers would be potentially worse off and, in some cases, far worse off as a result. That came to pass. Work Choices was legislated. The government held both houses of the parliament and they enacted that legislation. That led to many workers losing penalty rates, overtime provisions and many entitlements and seeing their wages fall considerably. As a result, in part at least, we saw the end of that government and we saw at the election in 2007 a Prime Minister for only the second time in our history lose his seat.

Whilst the breadth and depth of Work Choices are not contained in this bill, I contend that the motives behind the bill in part go to those same issues of deregulating protections for working people in this country and providing greater powers to the employer and lesser powers to the employee or the organised employees—namely, the unions. I say that because some of the provisions here clearly are either seeking to codify the law and legislate over common law decisions in the case of the 'casual' definition or looking to provide capacity for employers to subjectively deem somebody to be casual—and if they so deem them to be casual then they will be seen as such, again reducing the likelihood of a potential challenge by a worker to suggest on the facts of their employment that they are indeed permanent employees.

Of course, that provision was in response to the Federal Court decision in the Rossato case, which found a worker, who was employed by a labour hire company, who had a fixed full-time roster and who was being paid for some years, to be permanent, notwithstanding the contention by the employer that the employee was casual. There has been a lot of commentary on what that decision has meant, but it did not mean—and I would like to correct or contradict, if you like, the minister in relation to this matter—that all people in this country who are casual would somehow be in receipt of back payments. It did not mean that at all. In fact, whilst the construction of the registered agreement that applied to that worker and the facts of the case meant that there would certainly be claims by some casuals in this country, quite rightly, to be afforded the definition of permanent, it wouldn't have meant that in all circumstances. Therefore, the estimate of the costs to businesses were very much exaggerated. I just make that point. But what is really concerning and disturbing about the construction of that provision is that this provision would allow an employer to say, 'You are casual,' and you would be deemed as such, whereas what should happen, if we are going to have a statutory definition of 'casual' in legislation, is an objective test to delineate the difference between permanent and casual work.

Casual employment is a legitimate form of employment. There are workers who also choose to be casual, and they should be able to choose to be casual. It is an important part of the mix in the labour market in order to provide sufficient flexibility for workers and businesses. However, it has been misused and abused on occasion and, indeed, there are now way too many people who are not afforded the right of permanent employment and they need greater levels of certainty in the workplace. They need certainty of employment. They need certainty of income. Because they have permanent families, they need permanent jobs. They have full-time families; they want full-time jobs. They have long-term mortgages; they, therefore, want long-term jobs wherever possible. But this legislation is not actually supporting that endeavour wherever possible. In fact, it is acting contrary to the need to make certain and to provide more opportunities for permanent work in our labour market.

The minister has argued that, for example, some of the provisions of the current Fair Work Act were legislated by the previous Labor government. That may well be true, but it is also true that there are changes to the labour market that have occurred in the last decade that make it necessary for this parliament to consider protecting those workers who have become vulnerable as a result of those changes to the labour market. For example, the idea that you can buy and sell labour over an app was not something that was conceived of 15 years ago, 12 years ago or a decade ago in the way it is now. Whilst the work is traditional, the way the service applies has changed. It should not mean that workers are paid less than what is afforded to them under comparable awards. I think it's fair to say it's not just unions or the Labor Party that say that. I meet with many businesses who are bound to awards and they have to give their workforce a certain set of conditions and certain rates of pay. They are somewhat disturbed by the fact that they have competitors who are able to pay people $6, $7, $8 or $9 an hour to do the same work as their employees, who are being paid at least $20 an hour or above. So it's not just unfair to those workers who are not being afforded permanent employment status and provided at least the minimum wage in this country. It is unfair to those employers who are bound to the same awards and who find themselves now in a very uncompetitive position against their competitors that have been able to have arrangements in place that allow them to pay workers, so-called independent contractors, well below minimum wages.

There are mechanisms we can use. In fact, the New South Wales Industrial Relations Commission had a deeming provision in it to deem contractors to be employees if the circumstances were right and if the facts of the matter of the job involved were sufficient to show that that relationship was an employment relationship and not a contractual relationship—that is, that person was not a customer but, indeed, their employer. The New South Wales state commission could deem those workers to be employees. That deeming provision is something that we could take up in the federal jurisdiction.

That's why I refute the arguments made by the Attorney-General that it's not possible. In fact, it has been a part of our industrial relations system in other jurisdictions for decades, and it could certainly be determined to be such in the federal jurisdiction. I do believe that if there were a genuine attempt to provide opportunities of permanent employment for workers in this country there would be more effort made by this government to do that. But I'm afraid to say that doesn't appear to be the case. We have a definition of 'casual' which is really an attempt to remove any common law rights that might flow from the Rossato case. We have a definition of 'casual' which allows the employer to deem people to be casual as a subjective test, whereas what we need, if we're going to have a definition in the federal statutes, is an objective test to delineate between casual and permanent. That doesn't exist in this legislation, and that's why we can't support the bill as it stands.

As I say, 16 years ago we saw the then Prime Minister John Howard come in here and introduce his dream for the future of industrial relations in this country, and it was entitled Work Choices. That went deeper and broader in relation to changing the provisions of the current law at the time, but some of the elements of this bill, under the cloak of the pandemic, will deregulate protections for working people, will not make it more likely that exploited workers get even the minimum rate of pay in this country, and will actually be unfair to employers who are paying award wages and competing against employers who are not. For those reasons alone, this bill should be rejected.

But there is more to be done. Above and beyond this bill—and I speak to the amendment moved by the Manager of Opposition Business—we need to see greater protections. We've seen the fissuring of our labour market. We've seen technological change, which can be very good for productivity but can also be disruptive to the employment conditions of working people in the labour market. We should be providing greater protection where the changes that have taken place have led to people losing wages and people's incomes falling. Think about it: the Uber driver or rider is performing traditional forms of work. The fact they're doing it over an app doesn't make it fundamentally different, and yet they're not paid pursuant to an award, which would pay a minimum wage and provide a classification structure of the comparable levels of responsibility and skills required. That, ultimately, is why this bill cannot be accepted by federal Labor.

Again, we are concerned that the government, addicted as it is to deregulating protections for workers in this country, has chosen to seek to enact this legislation, and in some ways this is all the more insulting because the government uses the excuse of a pandemic to do so. For that reason and for the many other reasons outlined by the many Labor members of parliament who have spoken on this legislation, we cannot support the bill, but I do support the amendment moved by Labor.