Eric Abetz (Tasmania, Liberal Party, Minister for Fisheries, Forestry and Conservation) Share this | Hansard source

It is good to see that Senator O’Brien is awake. The government’s intention has always been to exempt outworkers from the effect of the provisions which override state laws. Currently the bill seeks to provide a guaranteed minimum rate of pay for outworkers who do not have such a rate of pay guaranteed by state or territory laws. These provisions are a recognition by the government of the particular vulnerabilities facing outworkers. As senators would be aware, the Senate Employment, Workplace Relations and Education Legislation Committee inquired into the provisions of the bills and unanimously recommended that some of the provisions in relation to outworkers be amended. I take this opportunity to foreshadow the government’s acceptance of the committee’s recommendations. The government’s proposed amendments will clarify the effect of the policy intention of the bill in relation to outworkers. These amendments were developed in consultation with the Textile, Clothing and Footwear Union of Australia, Fair Wear and the Senate committee. I would like to thank all those involved in ensuring that the provisions clearly and fully reflect the government’s intention to preserve existing protections for outworkers. This fact, with respect, seems to have been lost on senators from the other side of the chamber.

There has also been significant focus on owner-drivers in the road transport industry who are covered by existing New South Wales and Victorian owner-driver laws. The Independent Contractors Bill will maintain all existing state owner-driver protections for the time being. The proposed legislation only names those laws in New South Wales and Victoria because these are the only jurisdictions with specific owner-driver laws in operation. However, let me be clear about the extent of the preservation of these laws. It is the government’s intention to review all state and territory laws regulating owner-drivers in 2007, with a view to achieving national consistency where possible.

I will make some specific comments about amendment (4) to clause 7 of the Independent Contractors Bill, page 7, lines 22 and 23. This amendment would omit clause 7(2)(b)(iii) of the bill. That subparagraph currently provides that any instrument made under a provision of the law referred to in clauses 7(2)(b)(i) or 7(2)(b)(ii) is not affected by the general exclusion of certain state and territory laws in clause 7(1). As such, any instrument made under chapter 6 of the New South Wales Industrial Relations Act 1996 or the Victorian Owner Drivers and Forestry Contractors Act 2005 would not be excluded by this bill. This is the intention of the bill. However, clause 7(2)(b)(iii) is unnecessary because if a law is not excluded—that is, it continues to operate—then instruments made under that law are similarly not excluded, except where a law is excluded by regulations made under section 10 to the extent that the law authorises the making of an instrument. The omission of clause 7(2)(b)(iii) is therefore not intended to change the effect of the bill with respect to instruments made under a law listed in clauses 7(2)(b)(i) and 7(2)(b)(ii). Rather, the amendment would remove clause 7(2)(b)(iii) because it is a redundant provision.

I would like to take this opportunity to allay the concerns of Senator Hutchins, who took issue with proposed government amendment (4) to the Independent Contractors Bill. This amendment would omit a redundant subparagraph from the bill. It would not change the legal effect of the provision. The subparagraph currently provides that any instrument made under one of the saved owner-driver laws would continue to operate after the commencement of this bill. However, the provision is unnecessary, because if a law is not excluded then instruments made under that law are similarly not excluded and will continue to operate. Therefore, there is no need to spell this out in a separate provision. The supplementary explanatory memorandum provides more detail which makes this intention clear.

Senators Marshall and Hutchins have criticised the bill for not preventing children from being engaged as independent contractors. Interestingly enough, child labour regulation is a state and territory government responsibility. The proposed legislation expressly provides that the Independent Contractors Bill does not override state child labour laws.