Gavin Marshall (Victoria, Australian Labor Party) Share this | Hansard source

because they are good at it, because that is what they do. So I do not want anyone to think for a moment that the ALP does not have policies very strongly in support of contracting and people who contract. What we seek to do, though, is to have people properly classified so they have the appropriate protections. Senator Abetz says, ‘People will enter into these negotiations, and if they enter into negotiations they have to take the good with the bad.’ Again, we accept that in terms of genuine contractors. But this legislation allows for so many people to be forced into an arrangement where they are called contractors but where they are not contractors, where they have no say in it at all.

Does Senator Abetz really expect anyone to believe that those children who are employed as vendors at football matches, who are deemed by their employer as independent contractors, sat down and negotiated a genuine contracting arrangement with their employer? Does he really expect anyone to believe that? The reason the employers in those situations deemed those children to be independent contractors was simply to avoid paying them the rights that would normally have been available to them if they were employees. It was simply to avoid paying the casual loading. That is what they did. And what this legislation does is remove any state legislation that seeks to remove that sort of exploitation.

Does the minister really expect anyone to believe that a cleaner in an office block, at a school or anywhere else sits down and negotiates a contract of work with the employer? It is just a ridiculous scenario for him to put to us. And that is because he comes from the environment where he is really talking about lawyers and professionals at the higher level who may have those skills, who have unique skills to sell, and they can negotiate around and bargain for them. They may have some economic and some bargaining power in some of those situations from that area which Senator Abetz represents. But the people we represent are vulnerable. They can be exploited. They are people who live and work in ordinary circumstances. Having them deemed as independent contractors simply removes their rights as employees.

Senator Abetz can wax lyrical about freedom of choice and about people who want to be small business people, as if anyone who opposes this legislation wishes to stop that happening if it is genuine. We do not. We do not seek to stop that happening in any way. But we do say that if you are an employee you should be classed as an employee and it is not up to the employer to simply say, because it is cheaper for them and they can avoid their obligations as an employer, that you are an independent contractor.

Senator Abetz then says, ‘Oh, yes, but there are sham arrangements and there are penalties.’ How does a school cleaner take their employer to court to say, ‘I am an employee not an independent contractor’? How do you do that? You go and get a lawyer. I was part of the inquiry into this bill, so I actually went and got a legal quote, because the only way to determine this is to go to the Federal Magistrates Court or the Federal Court of Australia. So the school cleaner goes to a lawyer and says: ‘I really think I am an employee. I should get annual leave, superannuation and sick leave. I should get other provisions and other protections—all things that employee status gives me—and some security of employment.’ The lawyer says: ‘All right. We’ll run this case under this legislation in the Federal Court or the Federal Magistrates Court.’ The quote that they gave me if the employer was going to defend that action was that it would be a minimum of $30,000. Where does a school cleaner find $30,000 to get a determination from the court under this legislation to say, ‘I am really an employee’?

Just accept they do—someone might have $30,000 laying around in their back pocket—and they win and they are then determined to be an employee. The employer is not going to be very happy about that. They are covered by the Work Choices legislation and under the Work Choices legislation, of course, there is no more unfair dismissal. So what happens? The employer simply concocts a reason to terminate the employment of that person and then re-engages someone else on an independent contract status. The government says there are some protections in the act for sham arrangements, but those arrangements are shams in themselves, because ordinary people will not have the means to access that provision to have the determination made whether they are an employee or whether they are in fact an independent contractor.

So it is about ideology, and that is where I started. That is what Senator Abetz is all about and that is what this government is all about. This is simply an ideological piece of legislation complementing Work Choices. It is not about the Labor Party saying, ‘We want as many people as we can to be classed as employees’; our objection is that the government want to ram as many people as they can into independent contracting when they know full well they should be employees, because it gives employers the ability to avoid their employer obligations.