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

by leave—I move Greens amendments (1) to (3) together:

(1) Clause 2, pages 2 to 3 (table items 1 to 19), omit the table items, substitute:

(2) Schedules 1 to 7, page 5 (line 1) to page 105 (line 16), omit the Schedules, substitute:

Schedule 1— Tackling job insecurity

Fair Work Act 2009

1 After paragraph 5(8 ) ( a)

Insert:

(ab) provided by a secure employment order (see Part 2-7A); and

2 Section 12

Insert:

rolling contract basis: see section 21A.

3 Section 12

Insert:

rolling contract employee: see section 21A.

4 Section 12

Insert:

secure employment arrangement means ongoing employment on a part-time or full-time basis.

5 Section 12

Insert:

secure employment order: see subsection 306F(1).

6 Section 12

Insert:

small business exempt casual: a casual employee is a small business exempt casual if:

(a) the employer is a small business employer; and

(b) the employee has been employed by the employer for a period of less than 3 months; and

(c) the employee had not been employed by the employer at any time in the 3 months prior to the period of employment referred to in paragraph (b) commencing.

7 After section 21

Insert:

21A Meaning of rolling contract employee and rolling contract basis

(1) An employee who is employed on a rolling contract basis is a rolling contract employee.

(2) An employee is employed by an employer on a rolling contract basis if:

(a) the contract of employment ends on a specified date or at the end of a specified period; and

(b) the employee has previously been employed by the employer under such a contract; and

(c) the current and previous contracts relate to the same kind of work.

(3) For the purposes of paragraph (2) (a), a contract may end on a specified date or at the end of a specified period even if a term of the contract has the effect that the contract might be terminated before that date or before the end of that period.

8 After paragraph 43(2 ) ( a)

Insert:

(ab) those terms and conditions arising from a secure employment order (see Part 2-7A); and

9 After paragraph 172(1 ) ( c)

Insert:

(ca) matters pertaining to secure employment arrangements, including moving from casual employment, or from employment on a rolling contract basis, to secure employment arrangements;

10 After Part 2 - 7

Insert:

Part 2 - 7A—Secure employment arrangements

Division 1—Introduction

306A Guide to this Part

This Part provides for transition to, and maintenance of, secure employment arrangements (i.e. ongoing employment on a part-time or full-time basis).

Division 1 deals with preliminary matters.

Division 2 provides that offers of employment must usually be on the basis of secure employment arrangements.

Division 3 deals with requests for secure employment arrangements by existing employees. These include the following:

(a) requests to change from casual employment to secure employment arrangements;

(b) requests to change from employment on a rolling contract basis to secure employment arrangements.

Division 4 provides for the making of secure employment orders by the FWC for employees or prospective employees.

306B Meanings of employee and employer

In this Part, employee means a national system employee, and employer means a national system employer.

Division 2—Employment must usually be offered on an ongoing basis only

306C Employment must usually be offered on an ongoing basis only

(1) An employer must not make an offer of employment if the employment is not a secure employment arrangement, unless, at the time the offer is made, serious business reasons relating to the specific needs of the employer's business justify the employment not being a secure employment arrangement.

Note: This section is a civil remedy provision (see Part 4-1).

(2) This section does not apply in relation to an offer of employment as a small business exempt casual.

Division 3—Requests for secure employment arrangements

306D Requests to change from casual employment to secure employment arrangements

(1) A casual employee may request the employer, in writing, for a secure employment arrangement.

(2) An employee organisation that is entitled to represent casual employees may, if asked to do so by one or more of the employees, request the employer, in writing, for a secure employment arrangement for that employee or those employees.

(3) The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(4) If the employer refuses the request, the employer's written response must include details of the reasons for the refusal.

(5) This section does not apply in relation to a small business exempt casual.

306E Requests to change from employment on rolling contract basis to secure employment arrangements

(1) A rolling contract employee may request the employer, in writing, for a secure employment arrangement.

(2) An employee organisation that is entitled to represent rolling contract employees may, if asked to do so by one or more of the employees, request the employer, in writing, for a secure employment arrangement for that employee or those employees.

(3) The employer must give the employee or organisation a written response to the request within 21 days, stating whether the employer grants or refuses the request.

(4) If the employer refuses the request, the employer's written response must include details of the reasons for the refusal.

Division 4—Secure employment orders

306F FWC may make secure employment order

(1) The FWC may, on application in accordance with section 306G, make any order (a secure employment order) it considers appropriate to provide, or to maintain, secure employment arrangements for the person or persons to whom the order will apply.

(2) A secure employment order may apply to:

(a) any one of the following persons (a relevant person):

(i) a casual employee;

(ii) a rolling contract employee;

(iii) a prospective employee who, if employed at the time the application for the order was made, would be a casual employee or rolling contract employee;

(iv) an employee who already has a secure employment arrangement;

(v) a prospective employee who, if employed at the time the application for the order was made, would have a secure employment arrangement; or

(b) two or more relevant persons; or

(c) a class of relevant persons.

(3) Without limiting paragraph (2) (c), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(c) a particular type of employment;

(d) a particular employer.

(4) A secure employment order must specify the employer or employers who are required to comply with the order, being the employer or employers of the relevant person, relevant persons or class of relevant persons to whom the order applies.

(5) Despite subsection (2), a secure employment order cannot apply to a small business exempt casual. However, if the FWC is satisfied that a small business is continuously engaging employees as small business exempt casuals for a purpose other than the genuine operational needs of the business, a secure employment order may apply to those small business exempt casuals.

306G Application for secure employment order

(1) Application for a secure employment order in relation to a request refused under section 306D or 306E may be made by:

(a) if the employee made the request—any of the following:

(i) the employee;

(ii) an organisation that is entitled to represent the interests of the employee, if asked by the employee to make the application;

(iii) the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner; or

(b) if an organisation made the request—the organisation.

(2) Application for a secure employment order otherwise than in relation to a request refused under section 306D or 306E may be made by an organisation that is (or, for prospective employees, that would be) entitled to represent the interests of the relevant person, relevant persons or class of relevant persons to whom the order will apply.

306H Matters for FWC to consider

In deciding whether, or the terms on which, to make a secure employment order, the FWC must have regard to the following:

(a) that all employees should be entitled to be ongoing employees, unless there are serious countervailing business reasons relating to the specific needs of an employer's business;

(b) if the application was made under subsection 306G(2)—whether the order should apply to the same employees and prospective employees, and require the same employers to comply with it, as are covered by a relevant modern award;

(c) any other matter the FWC considers relevant.

306J Content of orders affecting more than one person

(1) Orders providing or maintaining secure employment arrangements for more than one relevant person may include one or more of the following:

(a) an order requiring that all the relevant persons who are casual employees or rolling contract employees be offered or be subject to a secure employment arrangement;

(b) an order providing for a process by which all the relevant persons who have been employed by the employer for a certain period of time can elect to or be subject to a secure employment arrangement;

(c) an order specifying the terms of secure employment arrangements under which casual loadings would be phased out over a period of time so as to avoid a drop in employee remuneration;

(d) an order implementing secure employment arrangements in such stages (as provided in the order) as the FWC thinks appropriate;

(e) an order requiring the employer to provide information to the FWC for the purposes of monitoring the staged implementation of secure employment arrangements;

(f) an order regulating the engagement of prospective employees on a casual basis, a rolling contract basis or a secure employment basis;

(g) an order regulating the engagement of employees currently employed on a fixed-term contract basis, where such employees may in the future becoming rolling contract employees;

(h) an order regulating the employer's use of arrangements that are not secure work arrangements in circumstances in which secure work arrangements could be used.

(2) Subsection (1) does not limit the orders that the FWC may make under this section.

306K Implementation of secure employment order in stages

A secure employment order may implement secure employment arrangements in such stages (as provided in the order) as the FWC thinks appropriate.

306L Contravening a secure employment order

An employer must not contravene a secure employment order.

Note: This section is a civil remedy provision (see Part 4-1).

306M Inconsistency with modern awards and enterprise agreements

A term of a modern award or an enterprise agreement has no effect in relation to an employee to the extent that it is less beneficial to the employee than a term of a secure employment order that applies to the employee.

11 Subsection 539(2) (after table item 9)

Insert:

12 After paragraph 557(2 ) ( f)

Insert:

(fa) section 306C (which deals with offers of non-secure employment);

(fb) section 306L (which deals with contraventions of secure employment orders);

13 After paragraph 557C(3 ) ( f)

Insert:

(fa) section 306C (which deals with offers of non-secure employment);

(fb) section 306L (which deals with contraventions of secure employment orders);

14 After paragraph 558B(7 ) ( f)

Insert:

(fa) section 306C (which deals with offers of non-secure employment);

(fb) section 306L (which deals with contraventions of secure employment orders);

15 After paragraph 576(1 ) ( f)

Insert:

(fa) secure employment arrangements (Part 2-7A);

16 After paragraph 653(1 ) ( c)

Insert:

(ca) conduct research into the operation of Part 2-7A in relation to requests for secure employment arrangements; and

17 Subparagraph 653(1 ) ( d ) ( i)

Repeal the subparagraph, substitute:

(i) the circumstances in which such requests are made; and

18 After paragraph 675(2 ) ( e)

Insert:

(ea) a secure employment order;

19 At the end of subsection 716(1)

Add:

; (g) section 306C (which deals with offers of non-secure employment);

(h) a term of a secure employment order.

(3) Schedules 1 to 7, page 5 (line 1) to page 105 (line 16), omit the Schedules, substitute:

Schedule 2— Rights for all workers

Fair Work Act 2009

1 Subsection 9(5B)

Repeal the subsection, substitute:

(5B) Part 6-4B contains special provisions about workers. It allows the FWC to make minimum entitlements orders that extend provisions of this Act, modern awards or enterprise agreements to workers. It also allows a worker who has been bullied at work to apply for the FWC for an order to stop the bullying.

2 Section 12 (at the end of the definition of employee )

Add:

Note 4: See also Division 1A of Part 6-4B (minimum entitlements orders).

3 Section 12 (at the end of the definition of employer )

Add:

Note 4: See also Division 1A of Part 6-4B (minimum entitlements orders).

4 Section 12

Insert:

minimum entitlements order: see subsection 789FBA(1).

5 Section 12 (at the end of the definition of national system employee )

Add:

Note 3: See also Division 1A of Part 6-4B (minimum entitlements orders).

6 Section 12 (at the end of the definition of national system employer )

Add:

Note 3: See also Division 1A of Part 6-4B (minimum entitlements orders).

7 Paragraph 576(1 ) ( q)

Repeal the paragraph, substitute:

(q) workers (Part 6-4B).

8 Paragraph 675(2 ) ( j)

Before "Part 6-4B", insert "Division 2 of".

9 Part 6 -4B (heading)

Repeal the heading, substitute:

Part 6 - 4B—Workers

10 Section 789FA

Repeal the section, substitute:

789FA Guide to this Part

This Part contains special provisions about workers.

Division 1A provides for the making of minimum entitlements orders by FWC that extend provisions of this Act, or modern awards or enterprise agreements, to workers.

Division 2 allows a worker who has been bullied at work to apply to the FWC for an order to stop the bullying.

11 Before Division 2 of Part 6 -4B

Insert:

Division 1A—Minimum entitlements orders

789FBA Minimum entitlements orders

(1) The FWC may make an order (a minimum entitlements order) that:

(a) the provisions of this Act specified in the order; or

(b) a modern award specified in the order; or

(c) an enterprise agreement specified in the order;

apply to work performed by the workers to whom the order applies for the constitutionally-covered businesses required to comply with the order.

Workers to whom the order may apply

(2) A minimum entitlements order may apply (subject to subsections (4) and (5)) to:

(a) a worker; or

(b) two or more workers; or

(c) a class of workers.

(3) Without limiting paragraph (2) (c), the class may be described by reference to one or more of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work;

(c) workers who perform work for a particular constitutionally-covered business.

(4) A minimum entitlements order must not apply to a worker unless the FWC is satisfied that the worker's terms and conditions as affected by the order will, considered on an overall basis, be no less favourable than the worker's terms and conditions before the order is made.

(5) A minimum entitlements order must not apply to a worker who carries out work as:

(a) a student gaining work experience; or

(b) a volunteer (within the meaning of the Work Health and Safety Act 2011).

Order must specify businesses required to comply with order

(6) A minimum entitlements order must specify, for each worker to whom the order applies:

(a) the constitutionally-covered business or businesses; or

(b) the class of constitutionally-covered businesses;

required to comply with the order in relation to any work performed for the constitutionally-covered business by the worker.

(7) Without limiting subsection (6) a class of constitutionally-covered businesses may be described by reference to either or both of the following:

(a) a particular industry or part of an industry;

(b) a particular kind of work.

789FBB When does a worker perform work for a constitutionally -covered business?

(1) A worker performs work for a constitutionally-covered business for the purposes of a minimum entitlements order, if:

(a) the worker performs work directly or indirectly for the constitutionally-covered business; or

(b) the worker performs work directly for another entity, and the constitutionally-covered business carries on a business of arranging for workers, including the worker, to perform work for that other entity.

(2) Without limiting paragraph (1) (a), a worker indirectly performs work for a constitutionally-covered business if the work benefits the constitutionally-covered business, irrespective of the legal relationship (contractual or otherwise) between the worker and the constitutionally-covered business.

(3) If, because of the operation of subsection (1), a worker performs the same work for 2 or more constitutionally-covered businesses, the FWC may specify any or all of those constitutionally-covered businesses for the worker in a minimum entitlements order that applies to the worker.

789FBC Effect of a minimum entitlements order

(1) If the FWC makes a minimum entitlements order, the provisions, modern award or enterprise agreement specified in the order apply to work performed by a worker to whom the order applies for a constitutionally-covered business required to comply with the order in relation to that work, as if:

(a) any reference to an employee (within the ordinary meaning of that expression), or a national system employee, also included a reference to the worker; and

(b) any reference to an employer (within the ordinary meaning of that expression), or a national system employer, also included a reference to the constitutionally-covered business.

Example: If a minimum entitlements order specifies a modern award, the award applies to the worker, in relation to work performed for the constitutionally-covered business, as if the worker were an employee. The obligation to comply with the modern award is in section 45 (in Part 2-1).

(2) The provisions, modern award or enterprise agreement specified in the order apply as referred to in subsection (1):

(a) from the time or times specified in the order (which must not be earlier than the time the order is made); and

(b) with such other modifications (if any) as are specified in the order.

789FBD Application for a minimum entitlements order

The FWC may make a minimum entitlements order only on application by:

(a) a worker to whom the order will apply; or

(b) an organisation that is entitled to represent the industrial interests of the worker, workers or class of workers to whom the order will apply; or

(c) an organisation that would, if a worker to whom the order will apply were instead an employee, be entitled to represent the industrial interests of the worker.

789FBE Matters for FWC to consider

In deciding whether, or the terms on which, to make a minimum entitlements order, the FWC must as far as practicable give effect to the principle that all workers should be entitled to minimum terms and conditions that are no less favourable than those of employees performing the same work.

This bill should be opposed. This bill should be opposed outright because it's a bill that will let job insecurity spread like wildfire across the country. That's why I and the Greens voted against it for the second reading and will vote against it in the Senate as well. This bill just needs to be stopped

If we are going to pass an IR bill in this place then what we should do is pass an IR bill that outlaws insecure work. That what these amendments would do. These amendments would not just outlaw insecure work but they would put in place a framework that means we can give equal rights to all workers in this country. I especially want to draw attention to those parts of the amendments which are found in amendment (3). There has been, rightly, across this country, attention focused on the fact that because some people are called contractors and some people work in different work arrangements they get paid less than the minimum wage and they get no sick pay or annual leave. It's been said by some on the government side that this is too difficult to fix because it's too complex an issue. Instead of moving the bill which the government proposes, which would entrench inequality in the workplace, these amendments will get rid of it by putting all workers on an equal footing. I want to speak about this, because it shows that it can be done. It is not too complicated to do; it can be done.

These amendments introduce a legislative presumption that all workers, whether or not they're classified as employees, should get the minimum conditions as if they were employees. That's the presumption. Under these amendments, it is then left up to the Fair Work Commission to decide, sector by sector, employer by employer, how to extend those employee-like entitlements to the workers without changing their employment status. That way, for anyone who's an Uber driver, a contract worker or in any other form of employment, if the Fair Work Commission says you should be entitled to at least the minimum conditions as though you were an employee, then you get them.

This should be unobjectionable, and it deals with one of the government's fundamental points that it has raised at every question time so far—that is, it's too difficult to impose a blanket rule. Well, let's do what has been in the Greens bill, which was presented in this place several years ago and which today I'm moving as an amendment to completely replace the government's bill—not add to it, because the government's bill is unsalvageable, but replace it. Let's put in place a system that says everyone is entitled to get at least minimum conditions, and it is up to the Fair Work Commission to decide how that operates for individual employers or in individual industries. This will allow the Fair Work Commission to say, for example, 'Uber, Deliveroo, or whatever service you're working for, have got to pay you the equivalent of the minimum wage as though you are an employee, so you're no worse off.' It's effectively a no-worse-off test if the commission chooses to implement it.

The point of moving these amendments is to say, firstly, the government's bill should be rejected; secondly, we should be tackling insecure work and the fact that so many people work for less than the minimum wage and don't get wages and conditions; and, thirdly, it's not too complicated. There is a fix. Change the law, introduce a new presumption and then ask the Fair Work Commission to roll it out on an industry-by-industry or sector-by-sector basis.

If the government continues to maintain that it is too tough to give workers in this country the minimum wage and minimum conditions, well there's an answer. It has been before the parliament for several years in the form of the Greens bill, and I'm moving it here as a replacement for the government's bill. Because, instead of entrenching insecure work and allowing it to spread like wildfire, we should be outlawing insecure work and we should be putting all workers on an equal footing with regard to the minimum. If this amendment passes and replaces the government's bill, then what we could say is that no-one will fall below the basic minimums in this country. No-one will get less if they're an employee, and it will be up to the Fair Work Commission to work out how that is applied on an industry-by-industry or a sector-by-sector basis. I say to the government: there is an answer. The answer is the Greens bill. Get rid of your own bill, replace it with this, and we will start to stamp out insecure work and put all workers on an equal footing.

In one final matter, this is just to indicate that the member for Clark has asked me to note, for the record, that he also supports these amendments.

Trent Zimmerman (North Sydney, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments moved by the member for Melbourne be disagreed to.

Question agreed to.

Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I present a supplementary explanatory memorandum to the bill and—by leave—I move government amendments (1) to (5) together:

(1) Clause 2, page 2 (table items 5 to 9), omit the table items, substitute:

(2) Schedule 3, heading to Division 1, page 43 (line 2), omit the heading.

(3) Schedule 3, items 17 to 23, page 43 (line 4) to page 44 (line 10), omit the items.

(4) Schedule 3, Division 2, page 46 (lines 5 to 20), omit the Division.

(5) Schedule 7, item 1, page 102 (lines 19 to 22), omit subclause 50(4).

These amendments will remove measures in the bill that were to effect a change to section 189 of the Fair Work Act 2009. That section is the existing exceptional circumstances provision, which was included in the Fair Work Act by Labor in 2009. It already enables the Fair Work Commission to approve enterprise agreements that do not pass the better off overall test in exceptional circumstances. The bill before the parliament today originally adapted this existing provision to take account of the exceptional circumstances that some businesses have suffered because of COVID-19. It provided that the Fair Work Commission might approve enterprise agreements that did not pass the BOOT where it was satisfied that it was appropriate to do so, taking into account all of the circumstances, including the extent of employee support for the agreement, the impact on the business of the COVID-19 pandemic, and safeguards, which were not explicitly mentioned in the current law under Labor's existing exemption. The removal of that exemption is based on the fact that, having gone through rounds of consultation with the crossbench, the government considers, having listened to the crossbench—particularly to statements made by One Nation senators to us—that the best prospect for the pragmatic, sensible reforms in the overwhelming part of this bill to be moved through the Senate was to remove this modest exemption to section 189, which is what these amendments achieve.

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

We support the amendments that are being moved by the government, but it does need to be noted that the government is now moving an amendment to a section of the bill that the government has spent two months claiming wasn't there. When the bill was introduced—that day—we made clear that this section constituted a pay cut. That day, and in every question time that followed, we made clear that the impact of removing the better off overall test was that workers would no longer be guaranteed to be better off. It's not complex—it's a little bit obvious—but, every time we raised this, we had two responses from the government. The first was to say, 'That's not true.' If it's not true, it does beg the question of why we're now having an amendment to remove that section. And the second thing that was raised was to say, 'Well, that clause is already in the bill.' If it's already in the bill, then why is there an amendment? An amendment, by definition, does something different. If you're not doing something different, it's not an amendment. You can't stand up and move that the legislation remain as it is and introduce a bill that does that. That's not an amendment to a bill.

Yet we have spent two months in the strangest of arguments, where there's a real issue out there for Australian workers, where we had legislation before the parliament that, if implemented, was going to allow a situation where their base rate of pay could not be changed but where every single penalty rate, every shift allowance and every overtime rate could be gone, and the normal protection to prevent that from happening would already have been taken away from them. That's what we had for the whole of summer. I would remind the government that, the day after they introduced this bill, we moved a suspension of standing orders to have the bill removed because of this provision, and the government voted against that. The government voted that they needed to keep this clause here, and they moved between the two arguments that I've referred to. But there was a third argument that came up from time to time, and it was advanced not by the Leader of the House but by the Prime Minister. When he got caught in the corner from time to time by the fact that this is clearly what the legislation was designed to do, he then defended it on the basis that that's the way to create jobs.

At its core, I think this is the debate that we're in. We're about to find ourselves, in the coming months, in a period—we don't know how fast—of some form of recovery. That's where we all want to be. All the indicators are that that's where the economy will be heading, and that is good. But, on the pathway of that recovery, there are two different views as to how you get there. One view is that you give business as much money as possible, and that means they will simply invest across the economy and all will be well. The other view is that you need to give workers the capacity to spend. The economy is going to be more dependent on domestic demand than it has been at any other time in our lifetimes. If people don't have the confidence to spend, the next few years, on the other side of this pandemic, are not going to look nearly as good as they should.

This bill in the form it's in right now, where the amendment has not yet been carried, creates a real danger that people won't have that confidence, because you don't have the confidence to spend if you don't have the confidence that your take-home pay will be retained. It's not simply keeping your take-home pay at the current rate or better; it's knowing that you're not going to be subject to future cuts that gives you the confidence to spend rather than to hoard and save because you're in fear of what might be coming next.

So, in this debate, we've been at the core not simply of the old-style debate of trying to get a better deal for Labor versus capital; we've actually been in something very specific to the other side of this pandemic. If people have the confidence to spend, the recovery is going to be that much better. But, if the approach is to attack wages, to attack superannuation and to attack the payment system, that won't only hit the recipients of those payments— (Time expired)

Trent Zimmerman (North Sydney, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments be agreed to. I call the Manager of Opposition Business.

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

The impact of that won't only be to the recipient of the wages or the entitlements; the hit will be to the Australian economy across the board. I would urge the government: it's a really silly debate to be in. This is not the only element of the bill that depresses wages. There are a series of elements of this bill that weaken bargaining power or provide for circumstances where people who currently, as part-timers, receive overtime will no longer be able to receive it or where very modest pay rises, such as $1 a year, can be locked into agreements for a period of eight years. These sorts of challenges are still in the bill. So I simply say to the government: you're a bit late getting there, in that we offered to get to this point the day after the bill was introduced, but we're there. But, if the government's intention is to have a bill that no longer cuts wages, they're not there yet. We support this amendment, but this bill still needs a tremendous amount of work, and it is not yet a bill that we could support.

Question agreed to.

Bill, as amended, agreed to.