Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Hansard source

First of all, there are a few different issues there. I will start with the questions about the definition of a 'casual'. Effectively, when you talk about what all these other elements of a 'casual' are, a lot of what's being legislated goes back to what the common law had been for a very long time until quite recently. Effectively, we're in a legislative sense going back to an objective definition of a 'casual'. But, on the question of whether, if someone doesn't want to convert, they have to convert, the answer is that, if you want to stay a casual, you can stay a casual. It is as simple as that. I know there's an attempt to make that complex; it's actually quite straightforward.

I will go through the issues of the member for North Sydney first. On coal long service leave, there is already a position there, and it's simply that the position under the statute is for the mining division of the CFMEU. That's what's already there. The mining division is about to leave the CFMEU and they voted for the de-amalgamation. Effectively, we weren't as advanced with that when I introduced the bill. We're now there, so we're taking the chance to move the amendment so they don't, in fact, lose their position on that board.

But it is not an additional position; it is simply a renaming because the organisation itself has renamed. So that's that one.

With respect to multiple arrangements, can I explain first of all the problem we're wanting to solve. The problem we're wanting to solve is if you have a company that uses a number of different labour hire firms for the purpose that this bill deals with. It only realistically happens with a company with high enterprise agreement rates where they are using labour hire for work that their direct employees otherwise do and they are wanting to go down to the award or a lower rate. They are using it to undercut the rate they've otherwise agreed to. One of the problems that had been pointed out in consultation was that, if someone makes an application to the labour hire firm they work for to have that fixed so that what people are being paid goes up to the enterprise agreement rates, if the company is using multiple labour hire firms then effectively you haven't solved the problem. They will just switch firms and go to other firms. So this is to give the commission the capacity that, if they are working with a number of labour hire firms, effectively it can make an order that applies to whichever labour hire firms might come in for those particular tasks. It gives the commission the authority to be able to do that.

The concept of deactivation is largely in the terms which the member for North Sydney said. There are extra words that were put in there to effectively give advice and guardrails and to make clear that there are circumstances where deactivation would be completely reasonable just as there are circumstances when dismissal in a employment relationship is completely reasonable.

I'll finally go to the issue of, 'What's the rush?' and the Senate committee process. There has been a long process in the Senate of delaying the bill. They are entitled to have their processes and do it the way they have. But the impact is that a couple of weeks ago, during a Senate-only week, they switched 1 February from being the latest date the Senate committee could report to it being the earliest date they could report. These dates have continued to be pushed out over time. My concern is that, if we don't give them the completed bill from the House of Representatives for their final meeting, which is in January, what will happen is we will still be moving amendments next year, we'll send it to them then and they'll say, 'Now we need another inquiry because you moved amendments to the bill.' I'm not saying every senator will argue that, but I certainly know some will. Some of the business organisations have already started saying, 'If there is an amendment, we now need a further delay.'

On the timelines in the bill where people say, 'That provision doesn't start for some time,' some, or most, of those delays are in fact to give the commission time to get processes in place so that they can be made simple and they can get all the information out to employers. On the labour hire loophole, for example, even though it won't start for some time into next year, the concept is that the cases and the work will be able to be done straightaway and there will be a whole lot of work by the commission leading up to these dates. Some people have looked at it sceptically and said, 'What is the rush?' in the sense of saying, 'Why are you rushing the bill when the starting dates for those provisions are late?' The starting provisions for some sections of the bill are late, but the work would begin immediately. The work of the Fair Work Ombudsman would begin immediately. The work of the Fair Work Commission would begin immediately.

We had significant information come back to us after last year's bill about the number of provisions that commenced on the same day. One of the things that the Fair Work Commission fed back to the government and directly to me was that, for their processes, it is much more helpful if we stagger the start dates. Then they are in a better position, for both workers' representatives and business organisations, to be able to get processes in place and make sure that there is very clear communication.

I don't believe we can responsibly leave the House of Reps amendments to any later than this week. We deal with them this week. I would love the Senate to be dealing with them next week, in the Senate-only week, but I think chances of that are remote, at best. They will make their decisions as to when they'll deal with the bill, but I do know this: if we don't give them a completed bill for their final hearing in January—and our only chance to do that is today and tomorrow—then it will be used as a new excuse for a further delay, and a further delay starts to hit a whole lot of provisions for when they're able to start. So that's the reason.

I do know that some amendments to be dealt with by the crossbench could have been affected by amendments that I moved. To that end, this bill is listed for today and tomorrow. Some people who were in that circumstance—I know the member for Fowler is not, and the member for Melbourne, the Leader of the Green Party, is not—wanted that delay. That's why, once we've dealt with my amendments, the amendments from the member for Fowler and the amendments from the Australian Greens, I'll adjourn the debate so that tomorrow the crossbench have that time. I hear there is always an argument of 'Can we have more time?' But, within the limits and constraints that we have, I really want these benefits to be reaching workplaces. I don't want to give the Senate a reason for a further delay beyond the delays they've already put in place.

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