Eric Abetz (Tasmania, Liberal Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

by leave—I move opposition amendments (6) to (15) on sheet 5739:

(6)    Clause 6, page 6 (line 10), omit “independent contractors and”.

(7)   Clause 12, page 18 (lines 10 and 11) definition of industrial association, omit “or independent contractors, or both,”.

(8)   Clause 12, page 18 (lines 14 and 15) definition of industrial association, omit “, or independent contractors, or both”.

(9)   Clause 12, page 18 (lines 17 and 18) definition of industrial association, omit “, or their interests as independent contractors (as the case may be)”.

(10) Clause 12, page 18 (line 21) definition of industrial association, omit “and/or independent contractors”.

(11) Clause 12, page 26 (lines 20 and 21) definition of registered employee association, omit “or independent contractors, or both,”.

(12) Clause 12, page 30 (line 31) definition of workplace law, omit paragraph (c) of the definition.

(13) Clause 194, page 183 (line 13), at the end of the clause, add:

      ; or (h)    any matter that restricts, controls or dictates the use or non-use of independent contractors.

(14) Clause 342, pages 297 to 298 (table items 3 and 4), omit the table items.

(15) Clause 342, page 298 (table item 6), omit the table item.

I think that it makes good sense that we deal with these as a job lot. A number of amendments were required but the idea of these amendments is to alleviate concerns. The increased number of references to independent contractors in the Fair Work Bill 2008 signals a future move to include this area of law within the sphere of workplace relations.

To us the overwhelming theme is that workplace relations law is industrial relations law. It is specifically about the governance of relationships between employers and employees. It is totally different from commercial law because the relationships between employees and employers are governed by different sets of rules and it is agreed generally in the law that the commercial relationship of independent contractors should be seen as being commercial law. So for the purposes of clarity and consistency, commercial law and industrial relations law need to be kept distinct, different and separate. Where either intrudes into the other’s jurisdiction, significant confusion is created for both employment and commercial undertakings within the community, and that can harm both economic activity and the rights of parties. The Fair Work Bill displays some inconsistency in some places in terms of definition and omission. The sham contractor provisions within the existing act are retained in the bill and we of course support that remaining the case.

I should also point out in support of these amendments that Ms Gillard was quite clear in relation to independent contractors. For example, she is on record as saying:

Labor’s policy is that independent contractors are small businesses that should be regulated by commercial law and not industrial law.

                   …         …         …

Federal Labor has also publicly clarified our position … As we have stated publicly, under Labor it will not be lawful for agreements to contain clauses which … prescribe that contractors be engaged or not engaged on the basis of … industrial arrangements.

                   …         …         …

Federal Labor understands the importance of independent contractors and small businesses to the Australian economy.

That was a letter written by the then shadow minister on 1 October 2007 to the Executive Director of the Independent Contractors of Australia. It is quite clear. It was a commitment before the election in relation to ensuring that independent contractors did not get tangled up in industrial legislation. We unfortunately have that here now in what is being proposed. Ultimately it means that independent contractors will be caught up in the industrial relations regime, which we know is something that the trade union movement in particular has been seeking for some considerable period of time. Our amendments are not inconsistent with Forward with Fairness in any way, shape or form and they are consistent with the commitments made by the then shadow minister and now minister. We commend this raft of amendments to the Senate to protect small businesses and independent contractors.