Don Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

by leave—I move opposition amendments (2), (9), (10) and (11) on sheet 1014:

(2) Schedule 2, item 9, page 8 (line 20), omit "5A,".

(9) Schedule 2, item 47, page 31 (lines 4 and 5), omit the item, substitute:

47 Item 9 of Schedule 1

  Omit "5,".

(10) Schedule 2, items 49 and 50, page 31 (lines 8 to 11), omit the items, substitute:

49 Item 10 of Schedule 1

  Omit "5".

50 Item 10 of Schedule 1

  Omit "789GJ(2)".

(11) Schedule 2, item 51, page 31 (line 18), omit "or 789GJD(2)".

We also oppose schedule 2 in the following terms:

(1) Schedule 2, items 2 to 8, page 7 (line 3) to page 8 (line 14), to be opposed.

(3) Schedule 2, items 10 to 22, page 8 (line 21) to page 21 (line 5), to be opposed.

(4) Schedule 2, items 25 to 27, page 21 (lines 15 to 24), to be opposed.

(5) Schedule 2, item 29, page 21 (line 28) to page 24 (line 16), to be opposed.

(6) Schedule 2, items 30 and 30A, page 24 (line 24 to 29), to be opposed.

(7) Schedule 2, items 33 and 34, page 25 (lines 4 to 7), to be opposed.

(8) Schedule 2, items 36 to 38, page 25 (line 10) to page 28 (line 2), to be opposed.

These amendments remove all references to the so-called legacy employers from the Coronavirus Economic Response Package (Jobkeeper Payments) Amendment Bill 2020, thereby removing access to the fair work flexibility provisions for businesses no longer eligible for government support. Labor believes the extension of JobKeeper flexibility provisions are unnecessary. The same businesses doing well enough to lose all government support are now being allowed to take away the job security of their workers. The government is shifting the cost of supporting businesses onto ordinary workers. Why should the pay of workers go down when the business's revenue is improving? How is it that a business suffering a 10 per cent hit is allowed to inflict a 40 per cent hit on its workers?

Extending the fair work flexibility provisions for people who are no longer receiving JobKeeper is a complete shift from what we were told when we first supported the Fair Work Act changes. We were told that the only reason the government wanted these sorts of changes was to make the JobKeeper payment operational. Now we discover that they want those same flexibilities to continue for workplaces that used to be on JobKeeper but no longer use it. We have shifted from a circumstance where the changes were simply to make the payments operational to an argument from the government that part of the recovery is to cut some of the conditions of workers in Australia on, apparently, a temporary basis.

The government has not made the case for these changes and, as such, Labor moves that they be removed from the bill. We urge all senators is in this chamber to support these amendments.

Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Link to this | Hansard source

The government will oppose these amendments. The workplace flexibilities provided for by this bill will assist employers who are continuing to experience financial distress as a result of the COVID-19 pandemic—overwhelmingly small businesses—to help them stay afloat and to keep their employees in a job. This includes employers who no longer qualify for JobKeeper but who continue to experience financial distress, a cohort that is referred to as legacy employers, many of whom will be unable to put their employees back on full-time hours and duties without having to cut jobs. This is particularly likely given the recent impact of the Victorian outbreak on the Australian economy, ongoing restrictions on businesses and economic uncertainty more broadly.

These flexibilities were developed in close consultation with a range of stakeholders, including union movement and industry and employer group representatives. The bill will allow legacy employers greater flexibility so they can keep people employed and their businesses afloat. All of the flexibility measures in the law as it stands are accompanied by a suite of comprehensive safeguards for employees, reflecting the close consultation with stakeholders, including the union movement, in the design of these provisions. These safeguards will continue under the bill, alongside some new safeguards applying specifically to employees of legacy employers.

Under the safeguards, employees of legacy employers cannot be stood down to zero hours under the provisions, but must still work at least 60 per cent of their pre-COVID ordinary hours and no less than two hours in a day on which they do work. Any direction issued by an employer must be reasonable. The employer must give notice to and consult with the employee or their representatives about the direction, and the direction must be put in writing. The Fair Work Commission is also available to resolve disputes about these provisions.

Directions to reduce hours can only be given where the employee cannot be usefully employed for their normal hours or days of work. Directions about duties of work and location of work require the employer to have information before that leads the employer to reasonably believe that the direction is necessary to continue the employment of one or more employees of the employer. Existing protections within the fair work system, including unfair dismissal rules, general protections, antidiscrimination laws, and work, health and safety all continue to apply as per usual. Crucially, none of the temporary Fair Work Act changes can reduce an employee's hourly rate, and any penalty rates or allowances applicable to hours actually worked must always be paid as usual.

Significant penalties apply under the Fair Work Act to employers who fail to meet their obligations or otherwise misuse the JobKeeper directions. The extension of the powers is temporary, and the provisions will be automatically repealed on 21 March 2021, with all terms and conditions reverting to normal on that date as though no direction or agreement had ever been made.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise on behalf of the Greens to support the Labor amendment. This amendment removes the new category of legacy employers. These are employers who are no longer eligible for JobKeeper, but they will still be able to use the flexibility measures, such as reducing workers' hours by up to 40 per cent and changing dates, locations and shift times. In allowing employers to reduce hours by up to 40 per cent, what the government is actually doing is shifting the cost of recovery from businesses and the state to the workers, and this is at a time when workers are suffering like nobody else.

The government is suspending workers' entitlements without guaranteeing them support, when workers need support more now than at any time before.

The CHAIR: The question is that items 2 to 8, 10 to 22, 25 to 27, 29, 30, 30A, 33, 34 and 36 to 38 of schedule 2 stand as printed.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

The question now is that amendments (2) and (9) to (11) on sheet 1014 be agreed to.

Question negatived.

Don Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I move Labor amendment (1) on sheet 1015:

(1) Schedule 2, item 22, page 13 (after line 17), after paragraph 789GJA(1)(c), insert:

  (ca) the jobkeeper enabling stand down direction will not result in the amount payable to the employee in relation to the performance of work for the employer for a jobkeeper fortnight that is within the jobkeeper enabling stand down period that is less than the amount that would be payable to the employee if the employer were entitled to a jobkeeper payment for the employee for the fortnight; and

Given that our previous amendment was unsuccessful, Labor is moving this amendment because it's critical to protecting the pay and conditions of low-paid workers. If this bill is passed unamended, we could see a situation where businesses which have recovered to the point where their turnover decline is less than 10 per cent can cut the hours of their employees to the tune of 40 per cent. Let's not forget that, in income terms, it could actually be much more than that, because it's a cut to hours.

If hours that are cut are hours that attract penalty rates then the worker may lose much more than 40 per cent of their take-home pay. A full-time retail worker, for instance, who normally works Wednesday to Sunday and who has their weekend shifts cut—which amounts to a 40 per cent cut in hours—would lose nearly half of their income. Remembering that retail workers have by and large stayed at work during this pandemic, this amendment has the effect of ensuring that no worker whose employer is no longer eligible for JobKeeper can cut their hours to the point where their take-home pay is less than the prevailing JobKeeper rate. Not to support this amendment means the employees working for companies which are recovering will be worse off than the employees working for businesses which, by the government's own definition, are in stress. I urge all senators to support this amendment.

Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Link to this | Hansard source

The government will not support these amendments. The overarching intention of the temporary industrial relations flexibility provisions in this bill is to keep businesses in business, to keep employees connected to their workplace and to preserve as many jobs as possible. The provisions in this bill facilitate this outcome by, among other things, providing legacy employers the ability to reduce an employee's hours in certain circumstances to 60 per cent of their normal hours to take account of the fact that the business is in distress and greater flexibility means a greater chance to save jobs.

Crucially, and this is something the proposed amendment apparently fails to recognise, a legacy business can only reduce hours where the employee cannot be usefully employed for their usual days or hours because of COVID-19—that is, the only employees who could ever be subject to a direction by their employer to have their hours reduced are those who could not be usefully employed to work their normal hours anyway. As such, any comparisons of income obtained by working full hours are deceptive and misleading, as working their full pre-COVID hours would simply not be possible for the employees we are talking about here.

Imposing an artificial minimum income equivalent to JobKeeper payments, as this amendment proposes, may also see an employer forced to pay an employee not to work, as, while the employee in question would be unable to be usefully employed for their normal days and hours, the amendment could have the effect of requiring them to be paid for those days and hours anyway. That is precisely the sort of thing that legacy employers, who, by their nature, must be financially distressed, simply cannot afford right now and that risks further job losses and business closures. Even if the 'cannot be usefully employed' safeguards did not exist, an artificial minimum income might be too expensive for the financially distressed employers we are talking about here and could lead to job losses otherwise avoided through the approach of a temporary and moderate reduction in hours proposed by the bill in its current form.

Finally, the amendment and the various claims of income reductions made by those opposite completely ignore the interaction with the social security system, which can operate to significantly offset the impact of a reduction in hours.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

It's a real shame that the government refuses to guarantee support to workers by their opposition to the previous amendment, which removes the new category of legacy employers. This amendment at least would prevent JobKeeper legacy employers from paying employees who have their hours cut less than the JobKeeper payment, and that payment would be employer funded. There's no reason for anyone not to support this amendment, and the Greens support this amendment.

The CHAIR: The question is that amendment (1) on sheet 1015, moved by Senator Farrell, be agreed to.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

I will just inform the Senate, as a number of requests for amendments have been circulated, I advise that, as required, senators proposing requests have circulated statements of reasons for framing them as requests, together with statements by the Clerk on whether the amendments would be regarded as requests under the precedence of the Senate. Is it the wish of the committee that the statements accompanying the circulated requests be incorporated into Hansard immediately after the requests to which they relate? There being no objection, it is so ordered.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments (1) and (2) on sheet 1008 together:

(1) Clause 2 , page 2 (at the end of the table), add:

(2) Page 33 (after line 21) , at the end of the Bill, add:

Schedule 4—Fair Work Commission powers to deal with jobkeeper-related disputes

Fair Work Act 2009

1 Section 789GA (paragraph beginning "This Part provides that the FWC may deal")

Repeal the paragraph, substitute:

This Part provides that the FWC may deal with a dispute about the operation of this Part, a dispute about whether a person who is a relevant employee of an entity should be treated as if they were an eligible employee of an entity and the entity entitled to a jobkeeper payment for the purposes of the jobkeeper payment rules, and other disputes arising between entities and employees in relation to eligibility and payments under those rules.

2 Section 789GC

Insert:

eligible employee has the same meaning as in the jobkeeper payment rules.

relevant employee has the same meaning as in the jobkeeper payment rules.

3 After section 789GV

Insert:

789GVA FWC may deal with a dispute about eligible employees or related matters under the jobkeeper payment rules

(1) The FWC may deal with a dispute about:

(a) whether a person who is a relevant employee of an entity should be treated as if they were an eligible employee of the entity for the purposes of the jobkeeper payment rules; or

(b) other matters arising between an entity and a relevant employee or eligible employee in relation to eligibility or payments under the jobkeeper payment rules.

(2) The FWC may deal with a dispute by arbitrat ion.

Note: The FWC may also deal with a dispute by mediat ion or conciliat ion, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(3) The FWC may deal with a dispute only on application by any of the following:

(a) an employee;

(b) an employer;

(c) an employee organisation;

(d) an employer organisation.

(4) The FWC may make any order the FWC considers appropriate in relation to a dispute, including any of the following:

(a) an order that a relevant employee is an eligible employee;

(b) an order that a relevant employee has met any requirement of the jobkeeper payment rules;

(c) an order that the entity employing a relevant employee has met any requirement of the jobkeeper payment rules;

(d) an order that the entity employing a relevant employee is entitled to a jobkeeper payment for that relevant employee or one or more other relevant employees.

(5) The FWC must not make an order under this section on or after 29 March 2021.

(6) In dealing with a dispute referred to in paragraph (1) (a), the FWC must, to the extent possible, give effect to the "one in, all in" principle.

Note: If an entity elects to participate in the jobkeeper scheme in relation to one relevant employee, it must participate in relation to all relevant employees: see section 10A of the jobkeeper payment rules.

4 Section 789GW (heading)

Omit " dealing with a dispute about the operation of this Part ".

5 Section 789GW

Omit "dealing with a dispute about the operation of this Part", substitute "made under this Part".

These amendments actually broaden the scope of the Fair Work Commission's dispute resolution powers to deal with disputes relating to workers' eligibility for JobKeeper. The Fair Work Commission currently has the power to deal with disputes relating to JobKeeper directions given by employers, including when a worker has had their hours, duties or location of work changed. The amendment would expand the Fair Work Commission's existing power to include issues relating to whether a worker is eligible for JobKeeper payments.

At the moment, the decision about whether a worker is eligible for JobKeeper is entirely at the employer's discretion, and workers have no way to dispute their employer's decision. Workers can make a tip-off to the ATO; however, they can't resolve individual cases, because privacy laws prevent the ATO from providing updates or the result of the tip-off. These amendments also support the one-in-all-in principle which is a key element of the JobKeeper scheme. They require participating employers to nominate all their eligible workers. Unfortunately, this principle is not enforced, leaving workers with no way to access the scheme if they have been left out. So broadening the Fair Work Commission's existing powers to deal with disputes relating to the eligibility for JobKeeper would ensure that workers are not missing out on payments that they are actually entitled to. I commend the amendments to the Senate.

Mathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | Link to this | Hansard source

The government will not be supporting these amendments. The JobKeeper program was designed as a self-assessment scheme to allow it to be rolled out quickly and make it as easy as possible for employers to participate. This has contributed to the strong uptake of the program. Eligibility for the JobKeeper program is set out in the JobKeeper payment rules. The rules require employers to provide all eligible employees with knowledge of their election to participate in the JobKeeper scheme. This must include information on how to provide a nomination form to the employer to participate in the JobKeeper scheme. An employer who refuses or fails to give such notice commits an offence under section 8C of the Taxation and Administration Act 1953, which is punishable on conviction by a fine not exceeding 20 penalty units, currently $4,400.

I would encourage employees in the first instance to have a discussion with their employer if a disagreement arises about eligibility for the JobKeeper scheme. If this does not resolve the issue, employees can contact the Australian tax office, which has carriage of enforcement and compliance for the JobKeeper payment rules. The ATO has a tip-off line if employees consider there is an instance of improper employer behaviour. The Fair Work Commission's jurisdiction under the JobKeeper provisions of the Fair Work Act concerns the application and interpretation of those provisions. The Fair Work Commission is an industrial relations tribunal and does not have expertise in taxation matters.

Don Farrell (SA, Australian Labor Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

I indicate that the Labor Party is supporting these amendments. It was Labor that identified early on that some employers were planning to pick and choose which of their eligible employees would receive JobKeeper payment. The potential for employers to discriminate between eligible employees on a range of grounds was obvious. Experience from our MPs was that employees were being given no reason, or otherwise totally spurious reasons, for being excluded from the program. Thankfully, the Treasurer eventually listened and created the one-in-all-in principle. The one-in-all-in rule requires employers who have decided to participate in the JobKeeper scheme to nominate all eligible employees for the scheme. The issue that this amendment seeks to address is the fact that, in a situation such as the one described above, there is no authority for the employee to go to in order to challenge or appeal an employer's decision to exclude them from JobKeeper on eligibility grounds.

The Fair Work Commission has previously reported that a large proportion of complaints about JobKeeper had been about eligibility, which was outside their jurisdiction. This amendment extends the Fair Work Commission's jurisdiction to deal with disputes about whether or not an employee is eligible for the JobKeeper scheme. Proposed section 789GVA provides for the Fair Work Commission to deal with a dispute about eligible employees and stipulates that, to the extent that it is possible, the Fair Work Commission must give effect to the one-in-all-in principle in dealing with disputes. The Fair Work Commission may also make an order to give effect to the one-in-all-in principle, including an order that the employee is eligible for the JobKeeper payment. The Fair Work Commission may deal with disputes about whether a relevant employee of an entity which is participating in the JobKeeper scheme is an eligible employee for the purpose of the JobKeeper payment rules. We therefore offer our support for this amendment.

The CHAIR: The question is that amendments (1) and (2) on sheet 1008, as moved by Senator Faruqi, be agreed to.