Rebekha Sharkie (Mayo, Centre Alliance) Share this | Hansard source

I and every other member in this place was elected as part of a democratic process that is the envy of many countries around the world. Internationally respected democracy does not and should not stop on election day. However, the treatment of this bill is, in my view, undemocratic and seriously undermines the parliamentary process. The government is deliberately rushing this bill through the parliament.

Members have had their opportunities to speak to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 curtailed, and it is so rushed that even the minister identified the need for amendments when introducing the bill. A bill of this significance, with broad-ranging impact across all industry sectors, requires proper scrutiny. This cannot be achieved when members are provided with a copy on the day of introduction and given less than two weeks to review, to explore the implications or to meet with industry and employee representatives—even just to talk to businesses in their electorates that will be affected by this—particularly when this bill is more than 250 pages long.

If this bill is as urgent and as important as the government suggests, where was the exposure draft? I think we all know the answer, because exposure drafts provide scrutiny and discussion, and they become part of the public discourse. The minister, in his second reading speech, outlined the guiding principles of the bill, and these included the need to increase wages, close the gender pay gap, address gender equity and improve job security. I don't think there's anyone in this place that disagrees with these principles. However, we must seek to achieve these in a consultative and constructive manner, not one that will unleash known and unknown consequences that, I believe, will return Australia to the industrial mayhem of the 1970s.

There is no better illustration than in part 3 of the bill, which abolishes the Australian Building and Construction Commission. We must have very short memories in this place if we are to think the removal of the ABCC is a good idea. The ABCC was established following several royal commissions into the building and construction industry. The 1990-1992 New South Wales royal commission was led by Roger Gyles, who found numerous illegal activities—from physical violence to theft. The Terence Cole royal commission, between 2001 and 2003, found a disregard for enterprise bargaining, unlawful strikes and the use of inappropriate payments. At the time, Cole said:

These findings demonstrate an industry which departs from the standards of commercial and industrial conduct exhibited in the rest of the Australian economy. They mark the industry as singular. They indicate an urgent need for structural and cultural reform.

At the heart of the findings is lawlessness. It is exhibited in many ways.

In all seriousness, do we really want to return to the dark days of intimidation, violence and lawlessness on our building sites? I think not. As such, I do not support part 3 of this bill.

There are many elements of this bill that I do support, and I know that I'm not alone in forming the view that the government should split this bill in two. The parts I do support comprise parts 4 through to 10, parts 12 to 14, parts 16 and 17, and parts 24 and 25. However, with respect to pay secrecy, I must say I am concerned that the intended outcome will not be achieved and that it may simply result in employers choosing not to pay more to staff that they find to be of greater value to the business—for fear of accusations of unfairness or an onslaught of requests from other employees who, quite simply, may not perform or be as valued.

One of my main concerns in this bill is the disproportionate effect on small business. Such enterprises do not have the financial or human resource capacity to accommodate additional complexities to what is already a complicated and laborious system. In South Australia there are 3,502 businesses employing between 20 and 199 employees, and 50,584 businesses with one to 19 employees. Combined, they represent around 36 per cent of all businesses in the state. The potential impost on these businesses cannot be understated.

In contrast, only 0.1 per cent of businesses employ more than 200 employees. Enterprise agreements favour these large employers with resources, with huge HR departments to negotiate with employee representatives. The cost-benefit is that the investment in time and resources versus the risk associated with bargaining is worth the outcome. In this context, it's not difficult to determine why enterprise bargaining has declined.

Others have weighed into the debate, including former prime minister Paul Keating. Ironically, he recently described the former Labor government's changes to the Fair Work Act as overly prescriptive and legalistic resulting in enterprise agreements falling over if a hypothetical worker is worse off in the future or if a third party that is not even a part of the agreement complains. Keating cited this as the reason for the dramatic decline in enterprise agreements and employers' avoidance due to fears of protracted negotiations without real incomes.

This bill does not address Keatings observations. In fact, it exacerbates the problem by laying the foundation of what is likely to result in industrial action, greater complexity and even more onerous responsibilities on employers, particularly small businesses. Instead of many of the proposed changes that are here, all we will be doing is making life harder for mum-and-dad businesses. For example, flexible work arrangements outlined in part 11 are broadened and, concerningly, give employees the right to request the Fair Work Commission to arbitrate when their employer has refused to grant their request for flexible working arrangements or in circumstances where the parties cannot agree on a compromised flexible working arrangement. It's absurd that the Fair Work Commission may be given powers to rule over an independent decision of a business owner.

There are many circumstances where businesses are legitimately unable to accommodate requests for flexible working arrangements. For example, in a small fruit and vegetable store in my electorate workers are needed between 4 pm and 9 pm. That's the busy time. That's when they need staff—not times that may suit the employee outside of their rostered hours. I do acknowledge that employees who are experiencing family and domestic violence need all the assistance and flexibility that can be afforded them, but there are many businesses that simply do not have the capacity to accommodate this.

We just haven't had time, with respect to this bill—COSBOA, just trying to meet with as many businesses as possible that are going to be affected by this. So I've put forward an amendment, and I move the motion circulated in my name that will take small businesses out of this equation and lift it up to 100 employees, because, quite frankly, 15 employees is so small. That's a local fruit and veg store and it's a local petrol station. Do we really think that they should have to deal with the unions? My goodness, they wouldn't have an HR department! They're lucky if they have a payroll assistant. More commonly than not it's the owners of the business who are spending their Saturday nights doing the payroll themselves.

If this amendment is not passed we will be pitting small business against the might, power and money of the unions. I have to say that I think much of this whole bill is actually about building the union movement rather than seeking to assist employees. What we need to do is to improve the award system, and that's what we saw recently with regard to aged-care workers. We don't need to force most businesses in Australia to go down through an enterprise bargaining agreement when they don't have that capacity or ability to do so.

I move:

That the following words be added after the words 90 days:   ."; and

(1) parts 1, 2 and 3 of the bill are added to the inquiry; and

(2) calls on the Government to change the definition of a small business from 15 to 100 employees".

I would ask all members in this place to consider this amendment very thoughtfully.

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