David Pocock (ACT, Independent) Share this | Hansard source

I rise to speak to the second half of this omnibus bill which we've now been examining for six months since last September. The Senate voted to delay the reporting of this bill and then voted to split this bill into two, and we're now facing the second half of that. There has been an exhaustive Senate committee process. One of the things that I had not realised about politics—not that I knew much about what to expect—is just how informative the Senate committee processes are and how collegiate things are, generally speaking; it gets heated at times. I'd really like to thank the secretariat and the committee—the chair, Senator Sheldon, and the numerous other senators—who basically did a roadshow around the country. I'd like to thank Senators O'Sullivan, Cash, Grogan, Barbara Pocock, Lambie and many others for engaging, listening and learning. There were seven full days of committee hearings in Launceston, Perth, Rockhampton, Sydney, Melbourne and Canberra, which had two days.

We've had a good look at this bill now. We've heard some pretty wild claims in here about what this bill does and doesn't do. Sure, omnibus bills lend themselves to that because there's a lot in them, but we have looked at this bill, and I'd really like to thank the stakeholders who have engaged so much over the last six months: the business groups, the small and large businesses, workers and unions. I know that many people in this place have done their own consultations. I've had four dedicated round tables where I've heard from these groups, and I've talked about this legislation at two town halls here in the ACT. I would like to thank people who attended and had input into that. So I think not only has there been scrutiny but there's also been genuine consultation. There's been work through the committee and then separately with businesses, employer organisations, unions, workers and the government to agree a huge list of amendments that make this bill better, that make it fairer and that make it simpler.

I think some of the claims we've heard are not based in fact or in the legislation that is in front of us now. These changes don't give unions the right to waltz into someone's family home—not even close. It's expressly forbidden. You cannot enter a residential premises. We've seen some scaremongering and people trying to use fear when it comes to farmers and small-business owners about things that don't even apply to them. I think that's quite dangerous and something that we, as elected representatives, should really be avoiding. I think Australians are tired of politicians who cry wolf, who try to whip up fear, telling people that the sky is going to fall, and who aren't willing to engage and improve things for people, for Australians—yes, both those who run the small businesses and those who work in businesses across the country. What I've been hearing from people is that they want to see us engage, want to see us listening and negotiating constructively on legislation, and that's what I've been trying to do.

Australians know we have a system that needs some work. They don't want delivery drivers who drop burgers off to them but are unable to live above the poverty line, who have no basic rights or insurance, who are getting knocked over and killed on a regular basis. They don't want truck drivers to have to work hours that are dangerous for themselves and other road users just to put food on the table for their families. They don't want a system where lecturers in our universities work seven years as casuals doing permanent work and are unable to apply for a home loan or have the stability of permanent employment even though they are doing that job year in, year out.

Australians know that things have to change and improve, but, yes, they also want flexibility. They want to ensure that workers who want to work as casuals, whether because they like the flexibility or because they like the casual loading, can do so. Through the committee process, looking through submissions and talking to stakeholders, I think almost every area that was raised as a key concern during consultation has been improved and there has been a balance struck. There are people on both sides who are unhappy, but things like people's right to convert from casual to permanent have been strengthened. The conversion pathway has been simplified to one employee-led pathway that. That was something we heard a lot about during the committee process. Again, there's the flexibility for casuals to opt to remain casual.

I think the amendments to this bill also make it fairer for businesses. They can refuse a conversion request on fair and reasonable grounds. We know that the circumstances of small businesses change a lot. Their income through the year changes a lot, their workload changes a lot, and we need that flexibility for them. The amendments also give businesses longer to adapt to the changes. Small businesses will be carved out of the civil penalty provisions, and the government is open to a review of the definitions of small business. Across Commonwealth legislation there are many definitions. One thing I've been hearing from small businesses is that more and more people wanting to work flexible hours means businesses have a higher headcount of employees on their books, so I think that warrants a look at the whole range of totals and numbers that are used.

One of the other things we heard was agreement on the need for new minimum standards for gig workers, and for the first time in this country we'll have a system that looks to ensure gig workers have minimum standards.\

Crucially, there will be a review of this legislation in two years. I think it's ridiculous for us to just set and forget things. We are going to have to improve this, and I think two years is a good length of time to see some of this work through.

The crossbench have done a lot of work on this, and I want to thank Senator Lambie and Senator Barbara Pocock for working constructively as a crossbench to improve this legislation. There have been a range of amendments: when it comes to casual employment, delaying the commencement of the casuals provisions until six months after royal assent, to give stakeholders time to prepare for the new arrangements; making sure the employment contract can still be considered by the Fair Work Commission in determining whether or not an employee is casual, which was something we heard a lot about during the committee process; ensuring that a single indicator should not establish a firm advance commitment to continuing and indefinite work; clarifying that an employer may be able to offer, or refuse to offer, work to a casual employee; and broadening the capacity for employees to enter into fixed term contracts as casual employees, which was a significant concern that was raised. Finally, there's an amendment that would ensure that all employees may be engaged on fixed term contracts as casuals except academics, as I mentioned earlier. This largely resolves legitimate concerns raised by on-hire companies offering temporary contracts, including to the Public Service.

The conversion pathway that I mentioned came up a lot in the committee hearings, and this legislation repeals the existing requirement on businesses to offer conversion to staff. It's now one simpler conversion pathway for employees to request a conversion. This will relieve the existing administrative burden that we heard about from businesses. There's also a provision that makes it simpler for business, especially small business, to refuse casual conversion by removing the requirement to provide a detailed statement of reasons. Senator Scarr talked about just how busy small businesses are. We do need to be doing things that ensure that workers are looked after, but we're also reducing red tape for small businesses.

Critically, part of this legislation will amend the Fair Work Act to allow the government to lower barriers to casual employees in the Australian Public Service converting to permanent and enabling them to apply to the Fair Work Commission to deal with disputes about casual conversion. We heard about issues around public servants who are working as casuals for a long time and because of the requirements of the merits based employment process they miss out. So, there'll now be a legitimate pathway for them.

When it comes to gig workers, there's a range of amendments limiting the Fair Work Commission to considering only the class or classes of regulated businesses to be covered by proposed minimum standard orders or guidelines rather than naming individual businesses through the minister's reg-making power and increasing from one to two out of three the number of criteria someone needs to meet to be defined as employee-like.

When it comes to right of entry, which I know there has been much debate about, there's an additional guardrail such that the Fair Work Commission, prior to issuing a certificate, must be satisfied that advance notice of entry into a workplace would hinder an effective investigation into suspected underpayments. That's a high bar to clear.

When it comes to the right to disconnect—and I'd like to acknowledge Senator Barbara Pocock's work on this for many, many years—I think it now strikes the right balance, where it is a right of the employee not to have to respond if they think it's unreasonable, if they're not being paid for that time. It doesn't affect people who have an allowance or have that in their contract. But I think there's a whole heap of workers out there, a whole heap of Australians who want a way to be able to say to their boss: 'I'm off. I want to spend time with my family and get away for a bit.'

When it comes to road transport, I'd like to acknowledge the amount of work that was done there before this legislation hit the Senate to build consensus. Despite what Senator Hume may say about there being no consensus, based on the engagement I've had there is a lot more consensus than I've seen on other issues that come through this place, and I acknowledge that that must have taken a lot of work. There are amendments that enable peak councils, defined as a national state council or federation that is effectively representative of a significant number of organisations, to make applications to vary or revoke minimum standards orders—this is another safeguard—and provide that minimum standard orders can include a term only to the extent necessary to achieve the minimum standards objective—again, another guardrail which I think is important.

Just to finish on the review, I think it's good practice, and I'd like to thank the government—Minister Burke—for the way they have gone about this and engaged with the crossbench.