Brendan O'Connor (Gorton, Australian Labor Party) Share this | Hansard source

I would like to add my concerns to those that have already been made by the member for Perth, the shadow minister, and the members for Cunningham, Adelaide and Werriwa. There is no doubt that if the government were seeking to mitigate the adverse effects of Work Choices legislation upon Australian workers then they would do a whole lot more, as the member for Perth clearly enunciated previously, in order to restore balance in the legislation with respect to Work Choices. Indeed, if there were a concern that employees are being exploited by being placed under sham arrangements under the proposed Independent Contractors Bill then a lot more would be being done to protect those employees.

I had the good fortune to be involved in the parliamentary inquiry into independent contracting and labour hire, and that was a very interesting inquiry. Indeed, the evidence was very disturbing because, whilst we may have different views about how we deal with the growth of independent contracting, and whilst Labor certainly believes there is a place for genuine independent contractors in our workplaces and in our economy, there were too many examples brought to our attention, both formally and informally, of people being pushed from being an employee to a supposed independent contracting arrangement so that they would then have to look after their own superannuation entitlements, their own workers compensation and other expenses that are normally the obligation of an employer. Effectively, people are being converted from being an employee on Friday to a supposed independent contractor on Monday. In fact, people younger than the age of 18 are being forced to take up ABNs and are being pushed into a supposed independent relationship between a principal contractor and an independent contractor. These amendments put forward for the government by the minister do not in any way protect the interests of those employees who would be subject to the legislation upon enactment. Therefore, in general terms, there are real concerns.

I know this has been mentioned by some other speakers, but I would like to add my strong reservations about the amendment that is supposed to protect redundancy entitlements in certain circumstances. Item 10 on page 4 purports to protect redundancy entitlements in a Work Choices or pre-reform agreement for 12 months in two circumstances: where the agreement is terminated by the employer in accordance with the act and where there is a transmission of business. We have heard arguments that this will protect employees in circumstances where they may well be at risk of losing their jobs once the agreement passes the nominal expiry date of that particular agreement. But it is true to say, and it has already been said to some extent by other members on this side of the chamber, that the entitlement is overridden where the employer and employee make new workplace agreements. Therefore, because there is no particular requirement to have redundancy as a provision of any agreement under Work Choices, this particular protection is flexible. I mean flexible in the way the government likes to use the word ‘flexible’, and that is that it can be dealt out of any employment arrangement and therefore whatever tinkering there is to the legislation it will not necessarily protect the interests of employees that are concerned that their employment may well be threatened.

Indeed, once a Work Choices agreement is terminated by the employer, or upon transmission, the obligation is on the employer to inform employees or the new owner of the business (Extension of time granted) that employees are still entitled to the old redundancy clause—I will finish on this point—rather than the Office of the Employment Advocate or the commission. We do not think it is fair to say that in all circumstances employees are in a position to do that. In fact, we would contend that in the majority of circumstances they are not in a position to bargain equally with their employer. That is why there are protections in place. If you remove particular entitlements or leave the entitlements to the discretion of negotiations between employers and employees, we think many employees will miss out as a result of the Work Choices legislation. No amendment that has been proposed will rectify that particular matter.

There is a host of other issues. I had the good fortune to listen to most of the shadow minister’s comments and also those of the members for Werriwa, Cunningham and Adelaide. It really is important that the government take note of those concerns. If they would really like to have the law match the rhetoric of the government, they will attend to the deficiencies in this legislation, review them properly and make further amendments that would at least go some way to mitigating the disastrous effects the Work Choices legislation and the Independent Contractors Bill 2006 will have on many thousands of Australian workers.

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