Penny Wong (SA, Australian Labor Party, Shadow Minister for Corporate Governance and Responsibility) Share this | Hansard source

I want to respond to a number of propositions put by the minister. The first is his point that there is no such thing as a dependent contractor because the common law does not recognise it. There are a great many things that the common law does not recognise, and that is generally why we have parliaments, legislation and policies. We are not governed entirely in our world by common law. We recognise that, whilst the common law has been one of the strengths of our system of democracy and law, at times—for good public policy reasons and to reflect the reality of people’s lives—parliaments need to legislate. So for him to fall back on a technical argument that the common law does not recognise anything other than an independent contractor or an employee probably demonstrates some of the problems with relying too much on the common-law definition.

There are a great many Australians who are effectively dependent contractors. In terms of legal form, their relationship may well be that of an independent contractor. But one would also argue that, in terms of their bargaining position, their ability to negotiate, their dependence for their livelihood and the terms and conditions of their engagement on a particular principal, they are significantly removed from the kind of orthodox construction of what an independent contractor is.

There is a second point I want to make, and this is probably the more important one. Senator Abetz suggested that we on this side somehow do not believe that independent contractors have sufficient nous—I think that was the word he used—and capacity to negotiate with the contracting party. He seemed to suggest that, given that they had sufficient nous and capacity to negotiate the purchase of equipment, why would we think that they did not have the nous to negotiate with the contracting party? This demonstrates the heart of the government’s philosophy on this and its absence of understanding about who has economic power. This is actually nothing to do with whether people have the ability, intellectually or otherwise, to negotiate. Nobody on this side is saying that. We are saying that there are relationships where the economic power is such that, no matter how good you are, you are not in a position where you can negotiate better rates and conditions.

So yet again we have from the government this abstracted notion of choice that is removed from the reality of working relationships and of those who have economic power in those relationships. The same flaw that is at the heart of Work Choices is perpetuated in this legislation—that somehow people have this choice. In reality they actually have very little or no choice, because they have so few options for alternative work and do not have the sort of bargaining power that is ascribed to them. The government simply do not acknowledge it. They simply say, ‘That doesn’t exist.’

This week a person came to see me, and I understand he also spoke to the media. I believe his name was Mr John Murray. He was a contractor with, I believe, Downer Engineering, which is contracted to Telstra. His story was pretty compelling. This man has worked in this sector for a substantial period. He is a highly skilled worker who overnight effectively lost around $25,000 from his annual income because of changes that the principal imposed on his rates of work, conditions of work and conditions of engagement. I think he resides and works in Orange, and essentially he has no choice but to accept what has been altered in his contract of engagement with this firm.

To tell John Murray that Labor, in standing up for people in his position, is somehow saying that he does not have the nous is to completely misunderstand the predicament this gentleman and many like him find themselves in, where they are effectively dependent on a single entity for their work, and that entity has the ability to simply redetermine, at will, the conditions of engagement. What is the choice that Mr Murray has? This is the fallacy at the heart of this legislation.

I want to make a point about vulnerable workers. In his contribution, the minister seemed to ignore the fact that legislatures around Australia have recognised that the common-law definition of employee simply does not adequately protect many vulnerable workers. Outworkers are an example of that, and the government has belatedly come to recognise that fact. In the regulation impact statement in the explanatory memorandum—not the supplementary EM but the EM to this bill—you can go through, at attachment A, which begins on page 27, a range of workers who are going to be affected by this legislation who previously were under state deeming provisions in industrial relations laws in the states. The parliament said that these workers may not or do not meet the common-law definition of employee but there are very good public policy arguments for giving these workers access to those rights which would normally be accrued by employees

The minister countered this by saying, ‘The Labor Party just want as many people as possible to be employees.’ Do you know what we want? We want people to be reasonably protected. We think there should be legislation to deal with unfair contracts. We think there should be statutory definitions to minimise the prospect of sham contracts. We think those employees who are vulnerable and who have been deemed by legislation to be employees because they do not meet the common-law definition ought to be protected.

You can go through the sorts of people who are going to be left out in the cold—for instance, the milk vendors and cleaners who are under the New South Wales legislation. Cleaners have been deemed employees under South Australian legislation for some time. These are not people who have an enormous amount of bargaining power. The industry is generally dominated by women and has a high proportion of people from non-English-speaking backgrounds. Is the minister seriously saying, ‘It’s a commercial arrangement and we don’t have to worry about them’? This is the illogicality of the government’s position, which is actually driven by ideology and not by the reality of the experience of the lives of many working Australians. So Labor will be supporting Senator Murray’s amendments and we will continue to oppose this legislation.