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

In fact, independent contractors usually do buy their own tools and equipment. They buy their own truck. They negotiate their commercial arrangements with a financial institution. They arrange their own commercial contracts for the provision of the supplies and services they need. They do all these things, but somehow, when it comes to negotiating their own terms of providing their services, they are completely unable to do so. I simply suggest to those opposite that, if you accept that independent contractors have those commercial capacities, chances are they have those commercial capacities in relation to themselves as well.

Senator Sterle did make a sort of a point, I suppose, in relation to the circumstances of owner-drivers in New South Wales and Victoria compared with those in Western Australia. The Owner-Drivers (Contracts and Disputes) Bill 2006 is currently before the Western Australian parliament. This government is not in a position to consider whether to exempt legislation that is yet to pass the Western Australian parliament. The government has announced a review of owner-driver laws in 2007—that is next year—with a view to achieving national consistency where possible. So there is some degree of validity in Senator Sterle’s comments, and that is indeed why the government had already decided to have this review.

Where the legislation already exists, as it does in Victoria and New South Wales, we have been able to take that into account. In brief, regarding Western Australia, we cannot legislate in relation to legislation that does not exist. The review will be an opportunity for everybody to put their assertions and counter-assertions. We as a government encourage all stakeholders to participate in that review so that the truth can come out.

During this debate I think Senator Sterle made some comments about dependent contractors. The term ‘dependent contractor’ is used by some to refer to a worker who is at common law an independent contractor who provides a service to only one entity or to primarily one entity. Proponents of dependent contractors consider such workers to be employees. The term ‘dependent contractor’ incorrectly assumes that a contractor who performs work for primarily one entity is financially dependent on that entity and in an unequal bargaining position as compared to their principal.

This ignores the reality that independent contractors may be comfortable performing work for one principal or being engaged on a long-term contract. For example, IT professionals or contract engineers tend to be engaged on more complex and long-term contracts than independent contractor fruit-pickers. Highly skilled professionals are in a strong bargaining position as compared to their principals. The common law does not recognise the existence of dependent contractors. At common law, there are employees on the one hand and independent contractors on the other. Consistent with the common law, the government also does not recognise the existence of dependent contracting. The government considers that to adopt and use such a concept in the Independent Contractors Bill 2006 would blur the distinction between commercial arrangements and the employment relationship.

I think that deals with all the matters that have been raised during this bracket of discussion. It will not come as any surprise to Senator Murray that the government opposes his amendments.