Joe Ludwig (Queensland, Australian Labor Party, Manager of Government Business in the Senate) Share this | Hansard source

I am surprised sometimes by people who make bold predictions about what they are doing and not doing. Quite frankly, I think it is a case of the opposition cutting off its ideological nose to spite its face. If you try to remove references to independent contractors from various parts of the Fair Work Bill 2008 it does the opposite from what your intention is. It actually reduces the protection for independent contractors, removing protections that have existed for a considerable time in federal workplace relations legislation.

I can make two points about this proposal to remove independent contractors from the definition of industrial association and registered employee associations. The first point is that these definitions reflect the fact that many unions and employer organisations have independent contractors as members. Indeed, it is specifically provided under schedule 1 to the Workplace Relations Act that organisations registered under the act may include contractors. The second point I want to make is that the definition ensures that independent contractors cannot be discriminated against because they are members of an industrial association. For instance, the definition of an industrial association would mean that a person was protected from various forms of adverse action because they were a member of the Independent Contractors Association.

This leads me to an area that would concern me greatly if this amendment were passed. These amendments would remove various items in the definition of adverse action that apply to independent contractors. I can provide an example to show how this would not work and, in fact, would create an absurd situation. It would mean that an independent contractor who was refused a contract with a head contractor because he was not a union member or a member of a particular union would have no recourse. I do not think this is what the opposition really intends to give effect to.

The government is committed to freedom of association and to protection for both employees and independent contractors and for that reason on its own—although I do not know why the opposition would be minded to want it—we would not support the amendments. Of course there are a range of amendments but within amendment 13 the opposition seeks to make any terms that relate to the use or non-use of independent contractors unlawful in enterprise agreements. The government has made it clear that employers and employees should be able to include any term they wish in enterprise agreements made under workplace relations legislation, provided those terms remain connected to the employment relationship. When you look at the court decisions in this area they have previously found that some terms in industrial instruments relating to the use of contractors are connected to the employment relationship. For example, terms could be included in agreements relating to safety inductions for independent contractors or could provide that an employer must not undercut employees’ terms and conditions through the use of independent contractors.

On the other hand, a blanket restriction on the use of independent contractors would not be permitted. You could not do that. The opposition have not looked at the consequences of the amendments and I have provided an example of that. The opposition were concerned about how independent contractors might relate in this area and I have provided an explanation as to why they do exist in this area. Of course it has to be connected to the employment relationship and I have provided some examples of how that operates.

The government believes the opposition is wanting to write its Work Choices laws back into the legislation. The government’s position on terms in industrial instruments about the use of contractors simply reflects what has been allowed in instruments for well over 100 years and before the opposition’s changes. The telling point is that the amendments would effectively lessen the ability of the protections that an independent contractor would have with the head contractor, and I think that summarises the position. Nothing in the bill regulates terms and conditions of independent contractors, except for outworkers and obviously we will go to that some time this evening or tomorrow, and these only alter freedom of association provisions. I would ask the opposition to withdraw their amendment.