Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

After listening to the presentation by the member for Mitchell, I cannot help but think of setting the workers free. It conjures up the idea in my mind of releasing the dove of peace into the wild blue yonder, but not before giving it a good old-fashioned throttling. From the outset, let me say that I am absolutely opposed to the Independent Contractors Bill 2006 and cognate bill, just as I was opposed to the Work Choices legislation brought down by this government. This legislation will give independent contractors no direct benefit. They will not be better off. It will not better equip them to negotiate with unscrupulous employers or operators. It will not even up the difference in bargaining power that exists between businesses and potential contractors as they ply their trade. Just like the Work Choices legislation, the passage of this legislation will end with reduced wages, conditions and entitlements for hardworking Australians. This legislation is the culmination of big business plotting with the government to ensure that employers hold every card in the deck when it comes to future negotiations or determining employment conditions of Australian workers.

In his second reading speech, the Minister for Employment and Workplace Relations spent a considerable time using words such as ‘choice’, ‘freedom’ and ‘flexibility’. As Australian workers have come to understand, when this government uses those words to describe industrial relations, no good can come of it. No good can come of these changes. We have all heard of the quiet revolution in Australian labour markets at the moment, which has resulted in a considerable number of individuals becoming contractors and in a shift in responsibility from employers to the contractors themselves. Generally, independent contractors remain responsible for their own superannuation payments and the remittance of income tax payments to the tax office.

The minister described contractors as people who have chosen to work for themselves. Some people do do that but plenty do not. Many are in my electorate, whether they be painters or carpenters—my son included—and they do not get a choice. Either you front up for a job with an ABN and are prepared to act as a contractor or you do not get the job. That is beyond argument. That is a fact of life applying currently in various industries. For many of the people whom the minister describes as having chosen to work as individual contractors, there is no choice.

The quiet labour force revolution has meant that the independent contractor is seen to be a person who contracts for services to be provided without having the legal status or protections of an employee, even if they are dependent upon that contract for work. Sure, there are plenty of people who have genuinely decided that they will be better off working in a contracting role, who have established businesses accordingly, preferring to retain the capacity to decide when and where they work. I do not begrudge people that choice, although I suspect, if you consider the profile of individuals who have pursued this path, you will find that they are relatively highly skilled, quite able to work for themselves, to ply their trade and to negotiate on a reasonable basis as they sell their services to prospective organisations. As the Uniting Church pointed out to the Senate Employment, Workplace Relations and Education Legislation Committee:

We are, however, also aware that there are many workers who are being coerced into moving from being employees to being contractors, although this results in financial disadvantage and lost security of employment. They perform similar work to the work they performed as employees and/or to the work done by employees working alongside them.

The church went on to say:

Whether or not contracts contribute positively to anyone’s wellbeing depends on their content and the circumstances to which they refer. An exploitative contract which results in less than a living wage creates poverty and is not in the public interest.

Once again, the churches and community groups have spoken out against the dead hand of this government’s extreme industrial relations changes. While the minister talks about freedom and choice, individuals and community organisations know only too well that under this government freedom and choice are in fact being removed. The Australian population realise that, when the government talks about industrial relations changes, it is not acting in their interests and that their wages and conditions are at risk. While many contractors might have thought that somehow they would be immune from the excesses and unfair provisions of the Work Choices legislation, the provisions of this bill mean they will not be. They will know that, even if there are changes proposed to contracts, there will be no real negotiations other than around the margins.

It is interesting that the government has chosen to exclude small groups from the provisions of the bill before us. It is particularly interesting, given the anti-union, ideologically driven short-sightedness that led to the development of this bill, that owner-drivers in New South Wales and Victoria were excluded from the provisions because of the strong representations of the Transport Workers Union on behalf of its membership. The bill seeks to maintain the existing legislation in New South Wales and Victoria with respect to road transport owner-drivers, which will be subject to review in 2007. It allows the laws that have been in place in New South Wales for some 30 years—laws I note the minister recognised in his second reading speech as having bipartisan support—whereby owner-drivers can bargain collectively, with minimum rates of pay and goodwill compensation set by a tribunal.

The minister notes in his second reading speech that the reason for continuing to exclude owner-drivers in New South Wales and Victoria was that special circumstances face these owner-drivers. He noted that owner-drivers:

... operate within very tight business margins because of the large loans they have to take out to pay for their vehicles.

The minister knew he had once again gone a bridge too far with the original version of the legislation, because the Transport Workers Union rallied in support of owner-drivers in New South Wales and Victoria and provided the minister with some considerable feedback on how strong their feeling was about the original legislation.

The union got behind its owner-drivers and convinced the minister of the folly of his ways. It is interesting that action by a union has convinced the minister to change his mind in this circumstance, given that the primary purpose of this bill is, quite frankly, to remove unions from the equation. Let me remind you, Mr Deputy Speaker, of the Dawson bill, which is currently stalled in the Senate. Its very purpose is to allow for collective bargaining of small businesses provided that they do not allow a union to be the coordinator of their bargaining. That bill has stalled in the Senate, courtesy of Senator Joyce, but the bill was a government initiative to try to strip any involvement of unions, principally the Transport Workers Union, in representing the interests of their members—in this case, owner-drivers.

The fact that the minister has backed down in respect of owner-drivers in New South Wales and Victoria indicates the importance of strong representation from unions such as the TWU, which has proved that it is prepared to get out there and look after its members. Let us face it: its members are running their businesses and applying their trades as owner-drivers in an essential industry in New South Wales and Victoria.

There is no doubt that many people within the broad class of independent contractors were deeply concerned at the prospect of what the extension of the government’s extreme industrial relations changes might mean for them. Many independent contractors know that they are independent in name only and that, in practice, they are virtually indistinguishable from employees. The prospect of the introduction of this legislation sent a chill through my electorate and certainly through the owner-drivers, who have invested considerable sums of money in purchasing their vehicles, who have spent considerable time in running up their goodwill and who certainly do a lot to earn a living and to provide for their families.

Christopher Buttel, a fellow in my electorate, indicated to me that he was concerned about the changing dynamic in the workplace that would follow the introduction of this legislation. He was particularly concerned that there would be an opportunity for companies to use their power to influence the allocation of work unfairly, with the end result being that your personality, not your work performance, would decide whether you were going to eat next week. Similarly, Robert Serafini told me that he has been driving for 16 years and has invested $70,000 in setting himself up. He was concerned that he was going to lose access to his union and that, without them, he would be under considerable pressure when negotiating future contracts. These are just two people who have told me their stories, and I am sure they are not unique. The minister may not hear the stories as he travels the boardrooms of Australia spruiking his new industrial relations laws, but people with stories like those of Christopher and Robert are out there.

Maybe listening to the real-life experiences of working Australians will be the job of the new Minister Assisting the Minister for Workplace Relations—Joe Hockey might be persuaded to lend an ear to some real-life stories. Maybe it will be the job of the government’s new industrial relations task force. But who would know, because nothing has been said about what either the task force or the new minister will be doing. Either way, it will stand in stark contrast to Labor’s industrial relations task force, of which I have been a member, which has visited 22 electorates across the Commonwealth and spoken to more than 200 witnesses. We are out there listening to the real voices within our communities. The retention of the protections for owner-drivers in New South Wales and Victoria allows the basic minimum regulatory protections to remain in the industry in a way that does not hinder competition and does not reduce flexibility or destroy productivity.

When the minister was driving this legislation through cabinet—until he was tripped up by his backbench—he seemed to forget that there is an additional dimension when it comes to the transport industry: we need to be mindful that measures that erode the protection of workers also erode the safety of the entire community. No-one wants a situation in which owner-drivers are forced to take huge risks to meet deadlines. The introduction of unreasonable transport timetables puts at risk their lives and the lives of other road users. That said, the sting in the tail of these exemptions for New South Wales and Victoria, which was provoked by a backbench revolt, is that the legislation will be reviewed in 2007. So, sometime before or after the next federal election, this government is going to revisit these issues.

Possibly the biggest problem in this bill is the provision that relates to sham contracts. Quite frankly, the government’s sham contracting arrangements are a sham. The explanatory memorandum outlines a sham contract arrangement as ‘an arrangement through which an employer seeks to disguise an employment relationship as an independent contract in order to avoid responsibility for the legal entitlements of an employee’. This type of arrangement is a disgrace. It is an abuse of the system and, as all members in this place know, it is, sadly, far too common.

The government has acted to perpetuate the likelihood that sham contracts will be entered into with increasing regularity. If this is what we have to rely on to stop a sham, it has completely failed. While the minister believes that the arrangements he has put in place in this bill will send a clear message to employers that dressing up employment relationships as contracts will not be tolerated, he has failed spectacularly to introduce such a regime. The provisions introduce a reverse onus of proof, requiring a contractee to demonstrate that they could not reasonably have known that the contract was an employment contract rather than a contract for services.

That is not all. The worst aspect is that an applicant is required to demonstrate that the contracting arrangement would be an employment relationship. Talk about putting the cart before the horse! For a successful application to be mounted, an affected worker not only has to convince the Federal Court that the contract is, or is intended to be, a contract of service—that is, an employment contract—but also must successfully rebut any claim that the contractee could not reasonably have been expected to know that it is a contract of employment. As a layperson, that sounds pretty complex to me. It is almost as complex as the Work Choices legislation itself.

The cynical among us might think that putting such a system in place was aimed not at deterring contractees from entering into sham contracts but at deterring affected workers from challenging unfair sham arrangements. These thoughts are all but confirmed when you realise that breaches will be dealt with by the Federal Court or the Federal Magistrates Court, and not by the industrial relations commissions. These are cost jurisdictions, so any affected worker who manages to get through the earlier complexities of the system also faces the prospect of having costs awarded against them should they be unsuccessful in challenging a sham arrangement. Members on the other side will not mention a word of that. This is the disincentive for people to pursue sham arrangements. Great protections, aren’t they? Protections? They are disincentives. They erode access to justice by people who are working as contractors under these arrangements.

The simple fact of the matter is that those who are most likely to be caught up in sham contracts are those who are the least able to stand up for themselves. Those workers who are being taken advantage of under sham contracting arrangements are the least likely to be able to put together a case and front up to the Federal Court or the Federal Magistrates Court. However, this government is tearing down protections for the workers who need them most. This government governs for itself and its mates, and certainly not for this country. (Time expired)

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