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

by leave—I move amendments (1) to (5) on sheet 5065 revised 1 together:

(1)    Schedule 1, page 3 (after line 4), before item 1, insert:

1J After subsection 5(1)

Insert:

     (1A)    A person (the worker) who contracts to supply his or her labour to another party is to be presumed to do so as an employee, unless it can be shown that the other party is a client or customer of a business genuinely carried on by the worker.

      (1B)    A contract is not to be regarded as one other than for the supply of labour merely because:

             (a)    the contract permits the work in question to be delegated or subcontracted to others; or

             (b)    the contract is also for the supply of the use of an asset or for the production of goods for sale; or

             (c)    the labour is to be used to achieve a particular result.

      (1C)    In determining whether a worker is genuinely carrying on a business, a court must have regard to the following factors:

             (a)    the extent of the control exercised over the worker by the other party;

             (b)    the extent to which the worker is integrated into, or represented to the public as part of, the other party’s business or organisation;

             (c)    the degree to which the worker is or is not economically dependent on the other party;

             (d)    whether the worker actually engages others to assist in providing the relevant labour;

             (e)    whether the worker has business premises (in the sense used in the personal services income legislation); and

              (f)    whether the worker has performed work for two or more unrelated clients in the past year, as a result of the worker advertising his or her services to the public.

     (1D)    A court is to have regard for this purpose to:

             (a)    the practical reality of each relationship, and not merely the formally agreed terms; and

             (b)    the objects of the statutory provisions in respect to which it is necessary to determine the issue of employment status.

      (1E)    An employment agency which contracts to supply the labour of a person (the worker) to another party (the client) is to be deemed to be that person’s employer, except where this results in a direct contract between the worker and the client.

      (1F)    If:

             (a)    an arrangement is made to supply the labour of a person (the worker) to another party (the ultimate employer) through a contract or a chain of contracts involving another entity (the intermediary); and

             (b)    it cannot be shown that the intermediary is genuinely carrying on a business in relation to that labour that is independent of the ultimate employer, on the basis of factors similar to those set out in subsection (1C);

                   (i)    Chapter 6 of the Industrial Relations Act 1996 of New South Wales (and any other provision of that Act to the extent that it relates to, or has effect for the purposes of a provision of Chapter 6);

                  (ii)    the Owner Drivers and Forestry Contractors Act 2005 of Victoria;

                 (iii)    any instrument made under a provision of a law referred to in subparagraph (i) or (ii); or

These amendments insert a definition of ‘employee’ into the Workplace Relations Act. I outlined in full the Democrats’ reasons for doing so when I moved amendments (1) to (2) on sheet 5062 revised to the Independent Contractors Bill 2006, which was considered earlier. We have had a very full debate and, in my submission, we do not need to speak further on this. Therefore, I would appreciate it going to the vote.

Question put:

That the amendments (Senator Murray’s) be agreed to.

by leave—I move amendments (1) to (3) on sheet 5072:

(1)    Schedule 1, page 3 (before line 5), before item 1, insert:

1A Section 762

Repeal the section.

1B Section 813

Repeal the section.

(2)   Schedule 1, page 7 (after line 17), at the end of the Schedule, add:

4 Section 165 of Schedule 1

Repeal the section, substitute:

165 Simplified outline

In a moment of levity, which a day like today can occasion, one or two of your colleagues remarked to me that they were glad I was speaking because it enabled them to finish their lunch. With respect to amendments (1) to (3) on sheet 5072, I have taken the opportunity of the government seeking to amend the Workplace Relations Act to deal with the issue of conscientious objection, because it has been very much in the news of late. I have done so because the present conscientious objection provisions in the act are directly a consequence of an agreement between the coalition and the Democrats in 1996. The Democrats believe that the conscientious objection provisions in the Workplace Relations Act are now redundant and have been superseded by the introduction of freedom of association provisions in 1997, changes to the superannuation choice laws in 2004 and changes to the right of entry laws for small business in 2005.

The history of the conscientious objection provisions is outlined in a Parliamentary Library research note on conscientious objection. I record my gratitude for their historical work. The note says that earlier versions of the federal Labor legislation promoted the formation and registration of associations of employers and employees. One aspect of this encouragement principle was that workers should contribute to the relevant union by way of membership in return for award rates and the employment conditions secured by unions. The federal law allowed awards and industrial agreements to provide for union preference until 1997, although it did not promote compulsory unionism. However, at different times state laws have promoted union preference and/or compulsory unionism.

The first organisations to complain of labour law requiring union membership were religious groups such as the Exclusive Plymouth Brethren and the Jehovah’s Witnesses. These are religious groups which apparently do not tolerate their members joining unions or, for that matter, political parties. It was the Exclusive Brethren who persuaded the Queensland government in 1948 to legislate for conscientious objection to union membership on the basis of religious beliefs. Similar exemptions were introduced in other industrial jurisdictions. New South Wales introduced exemptions in 1951. In 1956, provision was made in the Commonwealth Conciliation and Arbitration Act 1904 for exemption certificates to be granted to non-unionists. This exemption was modelled on the provision in the New South Wales act. Thereafter, other states also allowed conscientious objection: Western Australia in 1963, South Australia in 1972 and Tasmania in 1984. Victoria did not make similar provision.

A campaign for voluntary unionism, based on the beliefs of the individual and not necessarily based on religious beliefs, manifested itself in Western Australia in about 1976, where it was held that society ‘can no longer tolerate a situation where it sits and has no freedom to work except under a licence from a union’. These fears went to coercion, intimidation and political association. Compulsory unionism and preference were made illegal in Western Australia in 1979. Queensland weakened preference clauses in 1976 and later in 1985.

In 1997, the Commonwealth prohibited union preference and compulsory unionism in the Workplace Relations Act 1996. It repealed union preference and introduced freedom of association and freedom of non-association. The Democrats supported freedom of association and it remains one of our key platforms. I must emphasise that we remain strong supporters of the right to join a union and the right not to join a union.

I referred earlier to this matter having had some publicity. On page 1 of the Age, of 21 September 2006, journalists Michael Bachelard and Michelle Grattan put out a story headed ‘Sect’s special treatment puts union out of business’. It said:

… in 1996, the Democrats insisted the provision be kept despite then minister Peter Reith’s attempt to repeal it on the grounds it was superfluous because the closed shop had been outlawed.

That he did intend that it be outlawed is correct, but that we insisted it not be is incorrect. The fact of the matter is that, with respect to the provision exempting the Exclusive Brethren from the Workplace Relations Act on conscientious religious grounds, Peter Reith rang me late in the final stages of our negotiated agreement to say he was being heavily lobbied by them and effectively wanted to be rid of the lobbying. He saw it as a minor nuisance, saw no reason not to continue past practice for a small religious group if it meant so much to them and asked whether I and the Democrats would object to their previous status being continued. I replied, ‘No.’ I saw it as a small, unimportant side issue amidst the broader controversy and bigger policy issues of the bill.

Some of the senators on this side of the chamber have always been surprised when I have publicly said that I rather liked Peter Reith. I found him an engaging and warm man, with a strong intellectual and philosophical base for his views. It did not stop us having some very feisty discussions, but I always found him good to deal with.

The problem is that Michelle Grattan and Michael Bachelard were relying on the Parliamentary Library’s understanding of matters, but they would not have been aware of the telephone calls between me and Peter Reith. Peter Reith and the coalition did intend to drop the provision and we Democrats were happy with that. Then they were lobbied and decided to backtrack, and we also accepted that. The phone call to me from Peter Reith produced the result that we now have in law.

A theme I have picked up in some of the stories about the Exclusive Brethren is that there has always been collusion or common interest between the coalition and the brethren, as witnessed by that 1996 law change. That was never my impression, and certainly Peter Reith never, ever indicated anything of the sort to me. At the time of the amendment, the government had initially sought to repeal the conscientious objection and then decided not to. In hindsight, perhaps I should have insisted on the repeal, but I had more pressing issues to worry about at that time.

The parliamentary research notes on conscientious objection state that later the federal conscientious objection provisions were to have a new function similar in nature to those in New South Wales. This happened in 2001, firstly in an unsuccessful stand-alone bill, then it was reintroduced in 2002 as a Workplace Relations Act amendment, this time attracting Labor support. Union entry was prevented where a small business employer objected to membership of organisations on religious grounds, where the employer obtained a conscientious objection certificate from the Industrial Registrar and where the employer’s staff did not oppose the denial of entry. The provision concerning denial of entry on religious grounds is at section 762 and the related provision is at section 812. About 30 current certificates are issued under that schedule, and it is advised that all have been issued on application from the Exclusive Brethren. So the conscientious objection grounds are not employed, to my knowledge, by any other religious group and, as we know, in Australia there are millions of people adhering to religious groups.

However, changes to the rights of entry laws that were introduced via the unfair Work Choices legislation in 2005 make the conscientious objection provisions in section 762 redundant, in my view. The right of entry laws now have more stringent requirements for officials who wish to obtain and then maintain an entry permit. The procedures they must follow when entering workplaces have also been tightened. Unions must obtain a permit for conditional entry to certain workplaces to investigate a suspected breach of the Workplace Relations Act or to hold discussions with employees. Unions may only enter a workplace to investigate a breach of an award or collective agreement, or of the act itself, if a member of the union is carrying out work at the premises and the suspected breach affects a union member.

If it involves an AWA worker then the worker has to request the union to investigate as per section 747(2). If all employees are on AWAs, or if there is a collective agreement to which the union is not a party, a union does not have a right of entry under the Workplace Relations Act for discussion purposes. However, the union does not need to have one member to enter for discussion purposes per section 760. It is my understanding of the Exclusive Brethren’s belief that members—and hence their employees—cannot belong to a union; therefore, under the new right of entry laws a union cannot enter the workplace of Exclusive Brethren business, because there would be no union members.

The Exclusive Brethren have also raised the issue of forced involvement in superannuation funds. At the Senate building and construction industry inquiry on 20 May 2004, Mr John from the Exclusive Brethren stated:

Because freedom of association is now enshrined in the act, union membership is not a serious issue. But the same principle of conscience applies to membership and participation in the union endorsed agreements and funds which, we believe, go well beyond the requirements of the law.

I would argue that the superannuation choice legislation negotiated by the Democrats and passed in 2004 does resolve this issue. If we ignore the political issues and just focus on the practical application of the Workplace Relations Act, the previous reasons for inclusion of conscientious objection provisions to avoid association and involvement with employee and employer associations on a compulsory basis no longer apply. My view, therefore, is that the provisions should be repealed.

The chamber is entitled to ask why I wish to bring this forward. Firstly, it is a contentious issue, according to media coverage. Secondly, the Democrats previously supported the conscientious objection provisions being in the act and I wish to advise the chamber that we no longer do. Thirdly, I believe that the way in which industrial relations law has now changed throughout the country, particularly with respect to the Workplace Relations Act, makes these provisions redundant. That is why I am taking this opportunity to move those amendments.

Question negatived.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.