Andrew Murray (WA, Australian Democrats) Share this | Hansard source

Government amendment (1) simply introduces new schedules. Government amendments (2) to (4) make changes to the sham arrangements, in particular misrepresentation of the employment relationship as an independent contract arrangement. Trying to attack sham arrangements is a good idea but it seems on the face of it that these changes soften the intended arrangements as originally put. The old provision said that:

A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person:

(a) believed that the contract was a contract for services rather than a contract of employment; and

(b) could not reasonably have been expected to know that the contract was a contract of employment rather than a contract for services.

The new provision says that:

A person does not contravene subsection (1) if the person proves that, at the time the person made the representation concerned, the person did not know that, and was not reckless as to whether, the contract was a contract of employment rather than a contract for services.

My understanding is that is a softer version, and I am not sure of the government’s view. Amendment (5) seems to me to be an improvement on the current provision because it allows for an injunction to stop the contravention or remedy its effects. It also allows for a person incorrectly dismissed to be paid compensation. My instinct is that amendment (1) is machinery, so we do not have to worry about that, and amendment (5) looks as though it is one we could support. But I have the feeling that amendments (2) to (4) soften the existing provisions and therefore should be opposed. I would appreciate hearing the minister’s motivation.