Warren Snowdon (Lingiari, Australian Labor Party, Shadow Parliamentary Secretary for Northern Australia and Indigenous Affairs) Share this | Hansard source

I commend the member for Calare for his contribution and his commendation to the Senate that there be enough of them over there to see the merit of the arguments that have been put forward by him and by those of us on this side of the chamber who are participating in this debate to ensure that the Independent Contractors Bill 2006 and the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 are defeated. There is no doubt that these bills are unfair and unreasonable. I make the observation that others have made: I think to date we have only had three government speakers on this legislation. We have already had a handful of opposition speakers and today another 15 or 16 opposition speakers will express their views about this legislation so that the voters in their electorates can understand their position.

I wonder what it is about the government that they do not feel their backbenchers ought to be given sufficient licence to be able to participate in debates in this parliament. I can only conclude that a decision has been taken by the whip or by the leader of the party to suggest to members that they not participate in these debates. Let me say this: they cannot hide. The Votes and Proceedings of this place will record how they vote. Even if they remain silent, we will know how they vote. We will be able to say to the electors in their individual electorates and to those people involved in areas where independent contracting is an issue, ‘This is what the government have done, this is why they have done it and this is how your member voted,’ so they can appreciate what has taken place here—the abuse of the rights of Australian workers.

We know that there are two bills that my Labor colleagues and I—and the member for Calare and, I hope, the other Independent members of this place—will not support. They are just a continuation of the Howard government’s extreme industrial relations changes and an ideologically driven attack on the working rights of all Australians. They are part of this government’s broader efforts to tear away from workers their rights, entitlements, conditions and the protections they were once guaranteed in the workforce. I note the second reading amendment moved by the shadow minister for industry, infrastructure and industrial relations which states that the bills continue the Howard government’s attacks on Australian workers:

... by allowing employees to be treated as ‘independent contractors’, thereby removing employee protections and entitlements and placing superannuation, tax, and workers’ compensation burdens on them;

and further:

... by removing protections from independent contractors who are in a dependent contract position and as a consequence in an unequal bargaining position;

It seems to me that we as an Australian community ought to be very concerned about the thrust of this legislation because what it is saying to people, and I know others have commented about this, is that, regardless of your situation, you will bargain your contract provisions with the person you are contracting to. Never mind the issue of collective bargaining or your rights as an individual. You will be subject to the conditions that are eventually going to be imposed upon you by the person you are contracting to. You will have to maintain and look after your own rights in terms of superannuation, sick leave, holiday pay, workers compensation, tax and so on.

What these bills will do is ensure that independent contractors are not seen as employees, when they ought to be, and ensure that independent contracting relationships are regulated by commercial law rather than industrial relations law. I note the phrasing used in the Bills Digest in explaining the purposes of the bills. It says:

The purpose of the Principal Bill is to move contracting relationships as far as possible away from the realm of employment and to place these relationships as far as possible under commercial regulation.

These bills seek to do this in a number of ways. I want to refer again to the second reading amendment moved by the shadow minister, which gives good expression to the concerns that I have about this legislation. The amendment states that the bills remove protection from independent contractors by:

(a)

continuing to use the common law definition of independent contractor as the basis of law without the guidance of statutory criteria;

(b)

allowing employees to be treated as independent contractors in a sham way by ineffective anti-sham provisions;

(c)

overriding State laws with employee deeming provisions;

(d)

overriding State unfair contracts provisions which provide protection to employees, contractors and small business;

(e)

overriding any future State and Territory owner-driver transport laws and putting existing State owner-driver transport laws at risk; and

(f)

failing to provide any genuine protections for outworkers through ineffective outworker provisions, significantly weakening outworker entitlements …

This is just a re-emphasis of the continuing message of the Howard government to Australian workers that ‘you are on your own’. We have it with AWAs, we have it with the government’s opposition to collective bargaining and the involvement of trade unions in the workplace, and now we have it with this legislation.

We know that the government have determined that they will not abide any proposition that there should be a process of collective bargaining freely chosen. What they are doing in this instance is ensuring that individual contractors cannot collectively bargain in a way in which they might otherwise do. It seems to me that when you are on the bones of your backside, as many Australian workers are, and you are forced into a position where you have to sublimate your desires for improved working conditions or improved contract conditions to the demands of a contractor who might well be unreasonable, it puts you at extreme risk. The people responsible for perpetrating this position on the Australian community are the Howard government. As I said, it is just a repeat of their continuing attack on the rights of Australian workers.

As Labor senators stated in the opposition senators’ report of the Senate Employment, Workplace Relations and Education Legislation Committee inquiry into these bills:

The basic policy aim of the Independent Contractors Bill is to turn as many employees as possible into contractors. In the Government’s view, and more particularly in the view of employer organisations close to the Government, industrial relations are greatly simplified by arrangements which put employees onto either Australian Workplace Agreements, or turn them into contractors. Work Choices is intended to encourage the first of these trends, and the Independent Contractors Bill is intended to encourage the latter development.

I do not know about you, Mr Deputy Speaker, but most of us in this place have families. In my case, I have four kids, not all of whom have left school—only one, and she is attending university. I can imagine what might happen in the case of a young person leaving school in a remote community—or any part of Australia. I talk about remote communities because of where I live. They might be seeking employment, and they might walk into the boss’s office—it might be a transport company or it might be something else—and the boss says, ‘You either sign this agreement as a contractual arrangement between you and me, or you don’t get the job.’ How intimidating would that be for a young person, particularly one who might not have done as well at school as we might have wanted them to? They might have difficulty in relationships. They go into the workplace and they find that they are being told what to do, when to do it and how to do it, but they are not given any capacity to seek advice or to be informed about their rights as Australian workers.

Despite whatever the legislation says, we know what happens in these cases. The intimidation will mean that invariably these Australian workers will be victimised. There should be no doubt, though, that Labor is more than happy to support Australians who genuinely want to start their own businesses. I did that myself, and I understood what my obligations were. When I set up a business, I understood that I had to look after issues to do with tax, superannuation, leave and the rest of it. I understood that that was what it was about. I did not seek to be an employee; I set up a small business.

What the government is seeking to do in introducing these two bills is create the impression that somehow small businesses and contractors are going to benefit. What we know about these two pieces of legislation is that these laws will do exactly the opposite. Genuine employees will be pushed out of the employer-employee relationship where they enjoy the entitlements and protection of industrial relations law—admittedly, only what is left of it after the way in which it has been trashed by this government. Nevertheless, they will lose what remains of those protections.

Instead, Australian workers will be pushed into sham independent contracting arrangements. As a result of that, the burdens that normally fall on the employer will now fall on some Australian workers—for instance, those burdens relating to superannuation, which I have spoken about, workers compensation and income tax. These bills also seek to override state and territory legislation dealing with employee deeming and unfair contracts that previously protected Australian workers under contract. The member for Calare spoke extensively about that in his contribution.

One particular area where these bills will have a major impact is in the transport sector, where there are high numbers of independent contractors working as owner-drivers. My electorate, Lingiari, extends 1.3 million square kilometres across the regional and remote parts of the Northern Territory. Road transport, road transport operators and owner-drivers are crucial. They are the lifeblood in terms of delivering products, goods and services to remote Australia. They are also vital in terms of taking goods to market. They are vital for the cattle, mining and tourism industries. Together, these industries comprise the bulk of the private sector activity in the Northern Territory.

I have often spoken in this place about the need to improve the conditions of roads in the Northern Territory to improve safety and the need to increase the carrying capacity of the vehicles that use those roads. This would in turn improve the performance of those Territory industries that rely on the road transport industry. But it is equally important that we look after the interests of those people who drive this industry, actually and metaphorically. We need to ensure that they are able to enjoy some protection of their working conditions and entitlements. It is true that not all people who drive road trains in the Northern Territory are independent contractors. Many are employees. Many have a good relationship with their employer and their interests are safeguarded. But we know that many independent contractors are owner-drivers in the transport industry, and we know that their relationships with their principal contractors are far closer in nature to employee-employer relationships than to commercial relationships.

The issue of owner-drivers in the road transport industry was the subject of extensive attention by the Senate committee which inquired into this proposal. There was a submission from the Transport Workers Union—and I hope the ears of the government are not offended by the use of the word ‘union’. I am proudly a trade unionist and I encourage any young person entering the workforce who I can discuss this with to join a trade union. I know the work of the Transport Workers Union in the Northern Territory. In their submission, they noted:

Owner-drivers are single vehicle operations the vast majority of which perform work exclusively for a single transport operator (principal contractor). Owner-drivers are often highly dependent upon those with whom they contract. Owner-drivers are price takers in the market place. This dependence leads to an inequality of bargaining power and the associated potential for exploitation.

I note that in the minority report Labor senators stated:

Exploitation of owner-drivers in the transport industry results in industrial instability, higher than average rates of bankruptcy and road transport accidents.

Understand that these people are price takers. If you are an owner-driver working in a remote part of Australia then added to the current cost of fuel is the cost of wear and tear on the vehicles, which, because of driving across these roads—the unmade roads, effectively; the off-bitumen roads; the dirt roads across remote parts of Australia—is absolutely stupendous. What happens as a result is that the contractors, and indeed transport owners generally, in those positions bear a tremendous cost and their margins become narrower by the moment in those circumstances. So they are in a very sensitive situation.

There is some protection in this legislation for owner-drivers in New South Wales and Victoria. These bills are prevented from overriding legislation in those states that seeks to treat owner-driver independent contractors as if they were in a normal employer-employee relationship. So the bills cannot override that legislation. But the government has not been as generous to owner-drivers in other parts of Australia, and particularly not to road transport workers operating in the Northern Territory. Unfortunately, they will be forced to cop the full brunt of the unfair changes contained in this legislation. That is unreasonable and unfair. After so many years in government, it is about time that, instead of continuing to attack Australian working people, this government saw the error of their ways and understood that a workforce that is productive, happy and properly remunerated and which has the right to the protection of a trade union and the right to collectively bargain is in the best interest of the Australian community and the Australian economy.

See this speech in context