Glenn Sterle (WA, Australian Labor Party) Share this | Hansard source

When you read amendment (6) you see the power that the business lobby, unfortunately, holds over this government. Prior to the government’s amendment there were problems with the unfair contracts provisions. The amendments which have been moved by Senator Murray and the Democrats would have substantially rectified those. But at least there was an avenue that could be used by independent contractors to redress unfairness in, or as a result of, their contractual arrangements. This unfair contracts provision of the bill has been held out by the government as evidence that it was putting in place protections for independent contractors. Despite the faults prior to this amendment, the provisions may have proved of assistance to some independent contractors. This must have upset the big business lobbyists, like the Independent Contractors of Australia, because it seems they have convinced the government to push through this amendment which will make many, if not all, applications pointless and doomed to fail.

Let me analyse the amendment a little closer. In reviewing a contract, the court must only have regard to, firstly, the terms of the contract when it was made and, secondly, other matters existing at the time the contract was made. This is ludicrous. It is designed to reduce to almost nothing the claims that could be successful under the provisions. To fully comprehend this just consider what an unfair contract application entails. An unfair contract application seeks to set aside or vary the terms of a contract to rectify unfairness. Take the example of an owner-driver. As the courts have consistently found, it will be an unfair contract if an owner-driver who has paid goodwill for entry into a business has their contract terminated without compensation for that goodwill or without the opportunity to sell the goodwill. It is only at the point of termination that the unfairness crystallises. Under this amendment, a court could not, as a matter of evidence, have before it the fact that a termination of the contract had occurred because the termination would obviously not be a fact existing at the time the contract was made. Therefore, despite the unfairness, the application would fail.

There are other important areas which we should also consider. Just imagine there is another hurricane off the Gulf of Mexico—let us hope there never is one, but we have to admit that it could happen—and watch what happens to fuel. We have witnessed massive spikes in the cost of fuel in this country within the last 12 months. Unfortunately, the price of fuel went up about 30c a litre. That might not sound a lot, but let me use the extreme example of owner-drivers. Take the road train operators running from Perth to Darwin on a round trip of nearly 9,000 kilometres who are using one litre per kilometre. It is not hard to work out that if the cost of fuel goes up 30c in one spike, and this was not allowed for in their contract when they initially signed it, it has a devastating effect on that small business.

Sadly, the majority of owner-drivers, who are small business men and women, have their family home on the line. It is as simple as that. They get in and buy a truck—well, they do not buy a truck but rather go to the bank, the bank graciously goes through what they own and what they have to their name and, as long as they have next week’s payment and equity in the home, the bank makes the loan and they can have a truck. So off they go. When you have a massive fuel hike like that, you, Mr Temporary Chairman Ferguson, would appreciate as much as any in this chamber, through your background in farming, what that can do to your business and to your family.

That gives us a lot of concern. Also, take your minds back to 11 September and that tragic event in America. One of the flow-ons from that was the massive hike in insurance premiums. I cannot talk in this place only about owner-drivers and the transport industry being badly affected by the spike in insurance premiums. It hit everyone in this country—every single business, homeowner and person insuring their car. The trucking industry in Western Australia and the TWU, with the support of the industry, used to have the truckies big rig day. Some 300 or 400 truckies—companies, owner-drivers, the whole lot—would shine up their vehicles, wash them, get the wheels polished, companies would donate vehicles and there would be a big fundraiser with rides for the kids, Ferris wheels and all sorts of things. There was very cheap food, and it was a good cheap day out. Entertainment was also provided. After September 11 the insurance for the park that used to be used in South Perth for this very special event—the money went to Make-a-Wish Foundation for sick children to try to make their lives that little bit better—went so high the event had to be cancelled. The insurance hike on that park went above the $20,000 we used to raise on that day. So you can understand that, if we let this go through, the industry will really be in trouble. The Labor side see this as the government promising something with one hand, if amendment (6) gets through, and taking away with the other hand. So the Labor Party fully supports Senator Murray’s amendments.