Kevin Andrews (Menzies, Liberal Party, Minister Assisting the Prime Minister for the Public Service) Share this | Hansard source

I move:

That the amendments be agreed to.

I wish to speak briefly to these matters and—with the concurrence of the shadow minister for industry, infrastructure and industrial relations, the member for Perth—to address in my remarks those remarks I would have made about the subsequent legislation being returned from the Senate; namely the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006, which is a related bill

On 1 December—that is, last Friday—the Senate passed the Independent Contractors Bill 2006 and the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 with amendments. Some of the amendments further the government’s policy of enabling genuine independent contractors to enter into arrangements of their own choosing, free from prescriptive workplace relations regulation. Other changes further improve the Workplace Relations Act 1996. The government accepts these changes.

I will briefly outline the nature of the more significant amendments. Senators of all persuasions supported amendments moved by the government to ensure our intention to preserve existing protections for outworkers in both state and Commonwealth laws. These amendments are consistent with the recommendations of the Senate Employment, Workplace Relations and Education Committee. Secondly, the Independent Contractors Bill 2006 maintains existing state protections for owner-drivers in New South Wales and Victoria.

There was an amendment by the Senate to omit subparagraph 7(2)(b)(iii) of the bill. Proposed subparagraph 7(2)(b)(iii) of the bill would have provided that any instrument made under a provision of the law referred to in subparagraph 7(2)(b)(i) or subparagraph 7(2)(b)(ii) would not be affected by the general exclusion of certain state and territory laws in subsection 7(1). The effect would have been that any instrument made under chapter 6 of the New South Wales Industrial Relations Act 1996 or the Victorian Owner Drivers and Forestry Contractors Act 2005 would not have been excluded by the bill. That is the intention of the bill.

However, paragraph 7(2)(b)(iii) is unnecessary because if a law is not excluded—that is, it continues to operate—then instruments made under that law are similarly not excluded, except where a law is excluded by regulations made under section 10 to the extent that the law authorises the making of an instrument. The omission of subparagraph 7(2)(b)(iii) by the Senate is therefore not intended to change the effect of the bill with respect to instruments made under a law listed in subparagraphs 7(2)(b)(i) and 7(2)(b)(ii). Rather, the amendment by the Senate removes subparagraph 7(2)(b)(iii) because it is a redundant provision. I emphasise that the amendment does not change the legal effect of the bill. There is no doubt that the New South Wales and Victorian owner-drivers laws and instruments made under those laws, such as contract determinations, are preserved.

Thirdly, in respect of changes to the Workplace Relations Act, most of the changes to the Workplace Relations Legislation Amendment (Independent Contractors) Bill 2006 are largely technical amendments, but I will single out for specific comment those that were the subject of involved consideration by the Senate. The first was stand-downs. The Senate has amended the bill to include new provisions relating to stand-downs. Under these provisions, an employer may stand down employees without pay, but only in specific circumstances such as a strike, machinery breakdown or a work stoppage for which the employer is not responsible.

I am aware of criticisms that the new stand-down provisions will be open to abuse; however, these comments ignore the significant protections in the legislation. Firstly, there will be penalties of up to $33,000 and injunctions preventing an unauthorised stand-down which can be obtained by an employee or the Office of Workplace Services. Secondly, parties will be able to access the model dispute resolution process to resolve stand-down disputes. The stand-down provisions strike a fair balance. In their absence, an employer would be forced to choose between continuing to pay the employee despite a lack of work and dismissing the employee.

The second change is to redundancy. The Senate also made amendments to ensure that redundancy entitlements are protected. The government is very intent that employee redundancy entitlements not be undermined. As such, for the first time the government is introducing safeguards for employees and their redundancy entitlements. One example discussed by the Senate involves Tristar Steering and Suspension and its employees. The measures passed by the Senate will ensure that agreement based redundancy provisions continue to operate for a maximum period of 12 months after an agreement is unilaterally terminated by an employer. Preserved redundancy provisions will also be protected on transmission of business. The measure will apply to all federal agreements, including pre-reform agreements.

Finally, I wish to make some brief comments about the cashing out of personal and carer’s leave. There are also amendments that will enable employees to request to cash out an amount of paid personal or carer’s leave each year, provided that a minimum balance of at least 15 days leave remains available for full-time employees, and the pro rata for part-time employees, after cashing out. (Extension of time granted) The proposed amendments are intended to provide flexibility for employers and employees to manage personal and carer’s leave balances in ways that suit their particular circumstances while ensuring that a reasonable amount of leave is available to an employee in the event of illness or injury.

This cashing out would be subject to a number of conditions under the proposed amendments. Firstly, a workplace agreement would need to include a specific provision that entitles the employee to elect to cash out an amount of personal or carer’s leave. Secondly, an employee must be paid an amount in lieu at a rate that is no less than the employee’s hourly basic periodic rate of pay. Thirdly, an employee would need to make a separate written request to cash out personal or carer’s leave. Fourthly, the employer would need to agree before any cashing out occurs. Finally, an employer would be prohibited from requiring or pressuring an employee to cash out personal or carer’s leave. This is a flexibility that has been permitted in the past, if agreed. Its continuation was requested by business, the union movement and employees alike. The proposed amendments will not affect personal or carer’s leave that accrued before the standard applied to an employee. The regulations to the Workplace Relations Act already deal with the cashing out of pre Work Choices personal or carer’s leave.

In commending the amendments and the legislation more generally to the House, can I remark that these changes to the independent contractors legislation and the putting in place for the first time in Australia at both the federal or state level specific provisions to protect the status of independent contractors—of whom there are, depending on various estimates, between one and two million operating in Australia today—were specific commitments which the Liberal and National parties made at the 2004 election and ones which we urge upon the House.

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