Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for the Arts) Share this | Hansard source

We set a really simple test for this legislation: it had to deliver secure jobs with decent pay. This bill, the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020, fails in its current form. The government have said that they will amend the bill. After the amendment, it will still fail that test.

Secure jobs with decent pay is not an unreasonable test, and there was a process which would have delivered this. We had a process that the government set up, with all the talk about the PM being the new Bob Hawke, where they would get unions and industry to sit down at the table. When Bob Hawke, Paul Keating and Bill Kelty established the Accord, they did get people to the table, but the government brought something to the table: they brought the social wage to the table, they brought Medicare to the table and they brought superannuation to the table. They brought something to the table to help broker the agreement. This government brought the table, and that was it. They just said, 'Oh, you lot sort it out,' and that was it. It's no surprise that not a lot was agreed at those working groups. I repeatedly made it clear that, if those working groups delivered a consensus, you could reasonably presume it would find its way easily through both houses of the parliament, but they didn't, and that is not the fault of the participants; it's the fault of the government in bringing nothing to the table to help broker an outcome.

What then happened was that effectively the minister had to make his own calls on what he would put in this bill and what he wouldn't. What he did, by all accounts when you look at this, was that he picked some legislation on wage theft that was already drafted and then added a whole lot of things that employers had sought—some things that unions had sought, but not many; employers got the better half of the deal. Then, either deliberately as a bit of ambit to then drop—as they did yesterday—or because he actually intended to make changes to the better off overall test, he threw that one in as well.

I would remind every member of this House that the government didn't take the invitation that we offered to them at the end of last year, when we made it clear that the legislation in its current form is a pay cut that covers every single award in Australia and we said they should withdraw it. They didn't. There will be an amendment that we're told the government's going to move later on. But, at the second reading, everyone in this House is going to have to vote for or against the bill in its current form, and you'll be voting on the bill with the pay cut in it.

But that pay cut wasn't the only reason that this bill fails the test that we set. It does not deliver secure jobs and it does not deliver decent pay. In some cases, it directly delivers pay cuts, and across the board it takes away a whole lot of the bargaining rules and other protections that are there for workers. In turn, when you take away the power to negotiate and drive change and to drive better enterprise agreements, you end up with a situation, by definition, where workers earn less.

I want to go through each provision because, even though we have said the whole way through that the suspension of the better off overall test was the most egregious part of this legislation but it wasn't the only problem, the government have now said: 'Oh, we've got rid of that one, so why aren't you on team? Why aren't you backing the whole thing?' Well, I'll tell you why: because we're not going to see workers worse off. We're not going to be in a situation where people lose job security.

Let's go through each section of the bill and see, aside from the government's spin, why this was never a Bob Hawke moment and why what's happening right now, for what is in front of us, is a bad outcome for job security. If it's a bad outcome for job security it's a bad outcome for wages, and it doesn't take much to work out that's a bad outcome for the economy. Right now, the economy's not going to have a whole lot of overseas tourists coming in spending money. We need local consumer demand, and if people don't think their income's secure they don't spend. This is the opposite of what the economy needs. After the sacrifices that workers have made over the last 12 months, it's the opposite of what they deserve. There is a level of respect that should have been shown to the Australian workforce and has not been.

Let me get down to the detail of what's in front of us here. First of all is the provisions on casuals. This has been written up and promoted by the government as though it's a big win for casuals. Let me go through what this section of the bill actually does. This has come from a minister who told us at the beginning of the pandemic that casuals would be okay, if they had to isolate with no income for two weeks, because they get a loading and, therefore, they've been saving for the pandemic and they'll all be fine. That's the level of understanding of insecure work by the person responsible for this bill, who might not realise—take a Griffith University study. Half of Australia's casuals receive no loading. In many industries, you have situations where the permanent workforce are on above-award rates and casuals working side by side with them are earning less. That is common; that is how it works. But what we have here is something that entrenches casualisation.

I know why they've done it. They've done it because they've been desperately fighting a case through the courts, a principle that's known as the Rossato and Skene cases. Let me give the example of casualisation from that case. Here we have somebody who was employed by a labour hire company and the labour hire company told them they were a casual. But the labour hire company was paying less than what the legal rate was at that site. So even with the casual loading, this worker was earning less than the permanent workforce he was working beside. And the labour hire company gave him a 12-month roster in advance.

Does anyone seriously believe that's casual work? You get paid less and you've got a fixed 12-month roster. That is a rort. That is appalling behaviour. It is simply endorsing the casualisation and insecurity of the workforce. There's someone with a 12-month permanent roster being paid less than those they're working beside, and we've said, 'Oh, that's casual.' It's a complete rort, and what this bill does is entrench that rort. The courts so far have said, 'No, that is not casual employment; that is permanent employment and a worker in that situation should be entitled to the leave payments, because this was appalling behaviour by that particular employer.'

What's in front of us now is a unilateral decision to cancel the rights of workers in that situation. This legislation says, where a completely outrageous rort has been committed by an employer—there are very few employers that do it on this sort of scale—'We're going to cancel all the money that worker was owed and put it back in the bank account of the company.' That's what's in front of us. The rort of a business being able to pay a casual less than the people they're working beside, having them on a permanent 12-month roster, getting all the benefits of a permanent workforce, but not having to take on any of the responsibility that goes with permanent work—that's the behaviour we're endorsing if we support this bill.

I don't believe for one minute the figures that come from the Minister for Industrial Relations. He's made up figures about me and he's made up figures about the courts. He's made up—which is a pretty extraordinary claim—an interesting costing. I reckon if your costing says, 'Somewhere between $18 billion and $39 billion', that's not a costing. If you want to give up that you're just inventing figures, give a range from 18 to 39. It's pretty clear there's no science to what the government is doing here.

Whatever the figure is, what they're doing is just transferring it from the worker to the employer in situations where casual employment's been rorted. That is an appalling act of entitlement from those opposite. They take the most vulnerable members of the workforce and, in situations where their employment has been rorted, they say: 'Oh, that would be terrible, that would be double dipping. We can't let that happen. Let's take their legal entitlements and transfer it back to the employer.' That's what this does.

But they do this in the name of giving casuals the right to be permanent. Let's look at how they've done that. What they've done with the transferring of casual to permanent employment is they've said, 'Well, however the employer defines you on day one, that's what you are for the rest of the year.' So if the employer signs you off as a casual on day one and says, 'Yes, there's no firm advance commitment,' but on day two gives you a roster for the rest of the year, that rort survives the full 12 months and there's nothing the worker can do about it.

But then the government says, 'Oh, but after 12 months the employer has to offer the worker permanent employment if that's what is happening.' No, not quite. That's not what the bill says. The employer can refuse to provide security by saying there are reasonable grounds and the worker doesn't get compulsory arbitration. If the worker wants to complain about it, their only answer is to lawyer up and go to the Federal Court of Australia. I don't know what understanding of casual workers those opposite have, but I can give you a hint: there are not a lot of casual workers who are in a position to say to their employer, 'If you won't make me permanent—I know I'm a casual—I'm going to take you to the Federal Court of Australia, and I'll pay for the lawyers, and that'll teach you.' Those casuals know what happens if they put pressure back, they know how quickly their shifts start to change, they know how quickly they stop getting the hours, they know how vulnerable their circumstances are.

In terms of arbitration, this week we're debating the media code and the big media companies, including the multinational companies, get compulsory arbitration if they have to deal with an online platform. Why? Because the power imbalance between a big media company and the platforms is viewed as needing to have compulsory arbitration because otherwise the platforms might not participate. But, somehow, a casual worker is not vulnerable? The big media companies need compulsory arbitration, but a casual can just go off to the Federal Court?

This bill is an attack on job security. It takes rights that casuals have now and it unilaterally obliterates them. It takes wages that a limited number of casuals would be owed right now and obliterates their right to that pay. It then makes changes to awards. It makes changes to a number of awards. On some awards it doesn't have a demonstrable impact, but in some where part timers are currently paid overtime, it removes their right to overtime payments. The minister will say, 'No, no, no, it's only if they agree to it,' but if they don't agree to taking their extra hours at the ordinary time rate, those hours will just go to someone else who does agree. So a part timer in the real world is faced with either giving up their overtime payment or giving up the hours in full. How is that doing the right thing by the heroes who carried us through the pandemic?

The other one they've got on the award changes is the flexibility extension. Can I just say something briefly about the extent to which this government has used the pandemic as cover to attack workers' rights? When JobKeeper was established, we were told we needed to provide an extra layer of flexibility for directions by employers, otherwise JobKeeper wouldn't work. It was a concession, but we said: 'Yes, we'll be constructive. We will do that with you to make sure JobKeeper works.' Then we were back here a few months later, as JobKeeper was ending for companies, and they said, 'As companies come off JobKeeper, if they used to be on it, we want to keep those flexible work directions for them as well.' Now they're saying, 'Let's now apply those flexible work directions to every company, even those who never qualified for JobKeeper.' They have had cooperation from workers, workers' representatives and those on this side of the House, but now we see how they want to get rid of protections that workers have, piece by piece.

The enterprise bargaining changes are extraordinary. It's just extraordinary what the government's got in store there. The changes to the better off overall test, that has been so much a part of the debate in this House, were only going to last two years, but the changes to enterprise bargaining that are still in the act are permanent. They're permanent cuts to rights. All of them seem to go the same way. Employers can now be going through the bargaining process for a full 28 days without telling their workers that the bargaining has commenced and that they've got a right to representation. Employers used to have to take all reasonable steps to make workers fully aware of what the agreement was. 'All reasonable steps' now becomes 'reasonable steps'. The concept about a fair and reasonable opportunity to decide whether or not to approve an enterprise agreement is there, which is weaker than the guarantees that used to be there for a proper explanation.

Unions can no longer assist the Fair Work Commission in scrutinising non-union agreements if they fall short of the standards. There are limits on what the Fair Work Commission can consider in order to inform themselves, in order to assess whether workers are better off or not. There are time limits on the commission having to approve agreements now in 21 days. In making their decision, even though the workforce has lost the opportunity for there to be an obligation that they fully knew what they were voting on, including whether they get a full copy of the proposed agreement, we now have a situation where, if workers didn't fully know what they were voting on, the fact that they voted for it—even if they didn't realise the full consequences of what they were voting for—the primacy of the vote has to win out. We know how this will be used. We know what this is there to drive.

With the enterprise bargaining changes, there's a particular change to the National Employment Standards. At the moment, agreements have to reflect them, but there's a change now that you have a standard clause in every agreement that just says, 'We're complying with the National Employment Standards.' If you have other clauses of the agreement that do not apply, they only get set aside if a worker realises that their agreement doesn't comply with the act and starts legal action to get it fixed. It means an agreement could contain a clause, for example, that says 'workers can cash out their full annual leave'. That clause would be unlawful and unenforceable, but it's going to be allowed to be in the agreement. An illegal clause will be in the agreement. When workers ask what their rights are, an employer will be able to present them with a document that would not stand up in court but will have been registered because of the changes in front of us now. And people don't think that will be an attack on wages? With part-timers losing their overtime, people don't think that will be an attack on wages?

It's pretty simple. If your take-home pay is cut, that's an attack on your wages. If your take-home pay is cut, that's an attack on your capacity to pay your bills. Please don't pretend that casuals are being given rights, if the only way they can ever assert them is to lawyer up and go to the Federal Court of Australia.

There are also greenfield agreement provisions here which don't allow for any minimum pay rise. Under this, an agreement can be locked in for eight years for projects worth as little as $250 million. In real life that's a huge amount of money, but, in terms of the dollars involved when you're driving infrastructure projects, $250 million is not a massive infrastructure project. So we've ended up with a situation where someone can work more than seven years at a workplace and receive pay increases over that period that end up way out of kilter with what other workers are receiving, and they have no recourse. There could be a wage rise of $1 a year, and that would be enough. The greenfield agreement would be locked in, and there would be nothing workers could do about their rights.

This is real, particularly for projects that involve a fly-in fly-out workforce. Some of those opposite will be familiar with some of these projects. We've had projects where aspects of an agreement have been problematic and there have been significant rates of suicide at some of these workplaces, over a period of time, because of clauses that had not been well enough thought out and aspects that hadn't been fully foreseen. I'm not going to name the project. I'm not going to target them. But this is real, and this is one of the things that gets fixed when you have a process and a window to be able to reopen negotiations. If you shut that off for eight years, the impacts are real. The impacts on wages are real, the impacts on conditions are real and the impacts on the workforce are real. It takes away the capacity to fix these issues.

On a number of occasions now, the government have wanted to talk about the wage theft provisions in this bill, saying that what they put in front of us, in its current form, is something that we would automatically support, based on everything that we've said. That depends on where in the country you are. If you're a Victorian member of parliament or a Queensland member of parliament, the protections against wage theft are actually weakened by what's in front of us now. When we've been calling for tough action on wage theft, it never occurred to us that the government would produce a bill that covered the field and weakened protection, making it easier for those committing wage theft in some parts of the country. The evidentiary threshold for the offence is high. I don't know how many prosecutions would actually be successful as it is anyway. But, for example, both Victoria and Queensland currently have a 10-year maximum sentence. That would be reduced to four years under this bill.

We've had lot of occasions where we've passed legislation to change sentencing times. This might not be right; I haven't done the full check, so I will give that caveat, but I don't remember any instance where it's been a debate about lowering sentences. I don't recall any instance of this government coming in here and saying they were going to lower the sentences for people who had broken the law. It's interesting that they've chosen to do so with wage theft. If this goes through in its current form, it will be easier for people to commit wage theft in Victoria and Queensland. If that's what the government's intending to do, be upfront about it, but don't pretend that it's such a shock that Labor isn't fully embracing that section of the bill.

It also completely gets rid of one of the crimes in Queensland, which concerns the fraudulent falsification of records. If an employer is fraudulently lying about its wage records, that should be a standalone crime, but this bill, according to the Queensland submission, would knock that out. It's a longstanding offence in the Queensland Criminal Code and, if it's going to be overridden, there should be a matching offence in the Fair Work Act. None of this would be a surprise to the government. They know what the state codes do, they know what the state laws are, and they have deliberately come in here and said, 'Oh, well, if we have to do something that looks tough on the bosses, at least in Victoria and Queensland we can make the penalties less severe and get rid of one of the offences.' Don't be surprised that we're opposed to the light touch. This is the first time I can remember that sentences are being lowered, and it just happens to be about wage theft.

Effectively, what we have here is legislation that fails the test that we put in every way. Secure jobs, decent pay—it's not complicated. But if you say to a casual, 'You used to have rights and now you don't,' that's an attack on job security. If you say to a casual, 'Whatever the employer does on day one is all we're going to look at for the first 12 months,' that's an attack on job security. If you say to a casual, 'The media companies get compulsory arbitration and a whole lot of people get compulsory arbitration, but you as a casual don't,' that's an attack on job security. If you say to a casual, 'The only way to get this fixed if your employer says, "Oh, it would be unreasonable to make you permanent," is to get lawyers and go to the Federal Court of Australia,' that's an attack on job security. If you say to every industrial organisation throughout the country, 'We're going to weaken the protections that your members have when you negotiate on their behalf for enterprise bargaining,' that's an attack on wages. If you say, 'Across awards, if you're earning overtime as a part-timer at the moment, we're going to change that overtime to ordinary pay,' that's an attack on wages. If there are parts of the bill that, as you work through them, are either an attack on job security or an attack on wages, is it any surprise that it fails the test that we put that it had to deliver secure work with decent pay?

I move the second reading amendment that's been circulated in my name:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that for this legislation to pass it should meet the test of providing secure jobs and better pay; and

(2) further notes that the bill will make jobs less secure and result in pay cuts."

In doing that, I say there are ways of acting in favour of job security. We can get an objective definition of a casual which reflects in legislative terms the common-law definition. If we do that, we will then have a situation where it is clear whether someone is a casual or they're not. If an employer is rorting that, we shouldn't have the 'get out of jail free' card that this bill is, saying, 'We'll just forgive the rorts of the past and legitimise them into the future.' That's what this bill does.

We have a huge problem with insecure work and, if people didn't believe that, the pandemic should have shown them, because the people with insecure work were the first people with nothing. The people with insecure work were the people who, even if they kept their job, had to lose their pay if they had to isolate for two weeks. They weren't using their loading to save for the pandemic, as the Minister for Industrial Relations seems to think. These are vulnerable Australians. They're not industrially strong. But, by and large, they're the people who carried us through the pandemic. They're the people who turned up to work when a whole lot of us were safely doing Zoom calls and working from home. Right at the beginning of the pandemic, they were facing the public, doing their work and dealing with incredibly distressed people. We've made speeches in this place calling them heroes. It's not much of a thank you—to attack their security and attack their pay. No-one should be surprised that Labor are opposed to this bill and, if a bill has measure after measure that weakens workers, attacks job security and attacks pay, no-one should be surprised when Labor say, 'We're voting against it'—and we are.

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