Adam Bandt (Melbourne, Australian Greens) Share this | Hansard source

by leave—I move Australian Greens amendments (4) to (15) together:

(4) Schedule 1, item 14, page 8 (after line 6), after the definition of franchisee entity, insert:

indirectly controlled employer: see subsection 558AA(2).

indirectly responsible entity: see subsection 558AA(1).

(5) Schedule 1, item 17, page 9 (after line 16), after section 558A, insert:

558AA Meaning of indirectly responsible entity and indirectly controlled employer

(1) A person is an indirectly responsible entity for an employer if:

(a) the employer, or an employee of the employer, directly or indirectly supplies goods or services to the person; and

(b) the person has influence or control over the employer's affairs; and

(c) that influence or control includes influence or control over the conditions under which work is done by employees of the employer, the amount paid for work done by employees of the employer or the way in which employees are paid for work done for the employer.

(2) An employer for which there is an indirectly responsible entity is an indirectly controlled employer.

(6) Schedule 1, item 17, page 10 (after line 26), after subsection 558B(2), insert:

Indirectly responsible entities

(2A) A person contravenes this subsection if:

(a) an employer contravenes a civil penalty provision referred to in subsection (7); and

(b) the person is an indirectly responsible entity for the employer; and

(c) the person has failed to take all reasonable steps to ensure that a contravention by the employer of the same or a similar character was likely to occur.

(7) Schedule 1, item 17, page 10 (line 29), omit "subsection (1) or (2)", substitute "subsection (1),

(8) Schedule 1, item 17, page 10 (line 30), omit "paragraph (1) (a) or (2) (b)", substitute "paragraph (1) (a), (2) (b) or (2A) (a)".

(9) Schedule 1, item 17, page 10 (line 35), omit "franchisee entity or subsidiary", substitute "franchisee entity, subsidiary or indirectly controlled employer".

(10) Schedule 1, item 17, page 11 (line 3), omit "franchise or body corporate", substitute "franchise, body corporate or indirectly responsible entity".

(11) Schedule 1, item 17, page 11 (line 7), omit "paragraph (1) (a) or (2) (b)", substitute "paragraph (1) (a), (2) (b) or (2A) (a)".

(12) Schedule 1, item 17, page 11 (after line 22), after subparagraph 558B(4) (e) (ii), insert:

or (iii) the trading arrangement entered into between the indirectly responsible entity and the indirectly controlled employer;

(13) Schedule 1, item 17, page 11 (line 31), omit "paragraph (1) (a) or (2) (b)", substitute "paragraph (1) (a), (2) (b) or (2A) (a)".

(14) Schedule 1, item 17, page 13 (line 3), omit "558B(1) or (2)", substitute "558B(1), (2) or (2A)".

(15) Schedule 1, item 17, page 13 (line 4), omit "franchisee entity or subsidiary", substitute "franchisee entity, subsidiary or indirectly controlled employer".

I am disappointed that I did not get support from the government or the opposition for the onus of proof amendments. They were very sensible amendments that would facilitate prosecution only in instances where the employer has failed to keep proper records. I am stunned that they were not agreed to.

These amendments go to the same point that the general bill is trying to make, about how you make people higher up the chain responsible for the actions of people lower down the chain. What we know from the 7-Eleven example, and increasingly from other examples as well, is that the people sitting up the top, who are the ones who ultimately make the money, use contracting chains to shift risk and responsibility further down the chain, ultimately to the worker who performs the work, while the money and the profits flow up to the top, to head office. That underlays the whole 7-Eleven scandal and the others that are unfolding at Caltex and at Domino's, to which the government has referred while introducing this bill.

This bill is not headed the 'franchisee bill'; it is the 'protecting vulnerable workers bill'. We know that vulnerable workers exist right across the board. I spent many years bringing cases to the Federal Court on behalf of outworkers and their unions. Outworkers are the people who get paid $2 or $3 an hour to make clothes in backyard sheds in cities right around the country. They do not get paid annual leave, they do not get workers compensation and they do not get sick leave; they have to look after everything themselves. Those clothes that they get paid $2 or $3 an hour to make get sold for $200 or $300 in the main streets of our cities.

The Fair Work Act recognises that this is a problem in the textile, clothing and footwear industries and there are provisions in the Fair Work Act that deal with outworkers. But what is becoming increasingly clear is that this kind of behaviour, as this bill exemplifies, is not just confined to the textile, clothing and footwear industries; it is happening right across the board. It is happening in transport. It is happening in industries that previously people might have thought would be immune to it. We are finding that the head office increasingly puts distance between itself and the people who ultimately do the work so that sometimes the small business who is closest to the employee in question ends up carrying the can.

This set of amendments takes the basic principles of the bill—that is, head offices need to take more responsibility for the conditions under which work is performed by the people who perform work for their benefit or under their name—and says 'Let's expand it across the board.' If it is good for what is happening in franchises, it is good for other workers as well. The effect of the amendments would be that if you can follow the contracting chain all the way up from the worker who performs the work to the ultimate beneficiary and controller of that then it does not matter how many legal niceties and intermediate steps the employer has put in between them and the worker who ultimately performs that, the person at the top is going to hold some responsibility. This is the principle that is at work in this bill. In a sense, it is a principle that is at work in the Fair Work Act when it comes to the textile, clothing and footwear workers, and this is an opportunity to expand it.

We know that the use of contracting chains is one of the key ways in which workers are made to become vulnerable—when they do not know exactly who their ultimate employer is because there is a series of intermediate companies, some of which might be shell companies, between them. This will mean that the worker, when they are exploited, if they are vulnerable, can go to the top of the chain and get some redress. If the person at the top of the chain wants to then follow it back down the chain, all well and good. But it will put the worker in a stronger position because the person doing the work—maybe it is because they are wearing a uniform or maybe it is because they are working in a shop that is branded with them—will know that they can go back to the head office, back to the head contractor, and seek redress. These are good amendment that address a growing problem, and I commend them to the House.

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