Parliament – Fair Work Amendment Bill 2020 – Second Reading

Monday, 22 February 2021

Over the last few weeks we’ve seen the government’s crocodile tears about insecure work and casual workers, but this bill, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, shows that they are not backing it up with substantive change. They talk about their concerns and about how important this bill is when it comes to wage theft and a pathway for casuals, but you’ve always got to look at the detail rather than the spin from this government. Not only does this bill have ineffectual clauses; it doesn’t pass the test of, ‘Will this deliver secure jobs and decent pay?’

There might be people surprised that the government’s been saying one thing and doing another, but I’ve known for a long time that this government—and, indeed, governments before it of the Liberal-National persuasion—have no interest in improving workers’ rights. In fact, their mission in this place—and it’s one of the things that often hold them together—is to reduce the wages and conditions of workers in this country. I know this more than most, having been elected in 2007, in that Work Choices campaign, in which at least the government then was honest: ‘We are going to cut your pay, we are going to cut your conditions, we are going to make collective bargaining harder and we are going to destroy the award system.’ One of the things that we hear from this government about the award system—I’d like to take this opportunity to remind the House—is that there would be no award system in this country if we’d seen the full fruition of Work Choices. By 2010, we would have had no awards in this country. There would be no safety net except the national standards, and that is something I will never forget and I know many in my electorate will never forget.

But let’s talk about insecure work. We’ve got over two million Australians employed casually. That’s one in every four workers. Of course, for some of these casual workers, this works for them. There is absolutely a place for casual workers. But I hear in my electorate too often that there are Australians in what are effectively permanent positions that are deemed casual. They are forced to take casual or gig jobs, cobbling together different jobs here and there, trying to make it work to ensure that they have enough ongoing income. I regularly speak with casuals and I hear the same all the time. ‘I’ve been in a job for five years.’ ‘I am a casual, but I can’t get a home loan.’ ‘I’ve got to work two or three jobs just to get by.’ ‘I live in constant fear that the work will dry up and I won’t have an income.’ These workers have no leave. They have no annual leave. They have no sick leave. Many of them have worked for years in the same place of employment with regular hours comparable to part-time or full-time work, yet they’re denied access to the rights of permanent workers.

Then there’s the insecurity of their pay. Of course, casual workers do get a loading, and we hear that a lot from the government. In the pandemic we heard: ‘Why don’t they put their 20 per cent away? That can pay for their 14 days isolation.’ That’s what we heard from this government, which said, ‘They can just pay for it because they get a loading,’ with no real understanding of what it’s like for those casual workers week by week, with hours going up and hours going down, not sure what the next week holds. Of course, for most casuals, penalty rates or the casual loading are not put away for a rainy day but cover the absolute essentials: grocery bills and other important things such as, often, child care, because that’s expensive. And so it is really difficult. Today in question time Labor asked a lot of questions about workers in the gig economy and the insecurity there. Once again we really had a government that dismissed it and had no answer.

Of course, we know it’s not only the day-to-day difficulty for these employees; we know that they were hit hardest by the pandemic. Workers in casual jobs lost their employment eight times faster than those in permanent jobs. Nearly one million casual workers were left behind when the Morrison government kept them off JobKeeper. Not only did we have them in precarious employment; this government decided to deliberately target them because they were casual workers. They were not afforded the same protection as their permanent counterparts. Of course, as I mentioned, often they were asked to stay home—stay home to isolate, stay home to keep others safe—and they did so without paid sick leave. It was belatedly that this government was dragged kicking and screaming to actually look at a paid pandemic scheme. It was really disappointing. It had got to the point where they had no choice. That is how difficult this government is.

The government, in response to this, has provided this interesting pathway to casuals. They say this legislation is really important because it gives someone the option to ask to be made permanent after 12 months—the option just to ask. And, of course, under these laws, if a worker agrees to be employed as a casual at the start of their employment, they remain casual regardless of their actual work pattern. As long as the employer employs them on that basis, they make no firm advance commitment to continuing in indefinite work according to the agreed pattern of work. This is very difficult for many casual workers. This bill also says, sure, as part of the national employment standards an employer must make a written offer of conversion to permanent employment to a casual after 12 months. But the really difficult bit here is that the employer does not have to make them an offer if there are reasonable grounds.

What are the options for that employee? It’s to go to the Federal Court. The government seems quite fine and sure that this is the option that a lot of casuals would take. They seem absolutely unable to understand the huge power imbalance between casual employees and their employer. You don’t pick a fight with your employer if you’re a casual worker. I know that from firsthand experience.

As a 19-year-old, I saw the advertisements. John Howard told me I could go and negotiate my AWA with my large retail employer. I did. I went in and said: ‘I have some concerns with this. I’ve seen the ads. I’m here to negotiate.’ They laughed me out of the room. It was a take-it-or-leave-it contract. Then, a few months later, supposedly coincidentally, I received a letter in the mail, saying: ‘Dear fill-in-the-name, your services are no longer required. You were a Christmas casual.’ I had worked at that employer for five years since I was a 14-year-old. I had worked consistently, a shift every week, at that employer and they sacked me. I was lucky. I had the resources of a union. I also went to the Industrial Relations Commission. The commissioner was very nice. He told them to give that poor girl her job back. But that shows the power imbalance that is there. That shows the difficulty. Without the ability for arbitration in the now Fair Work Commission, this really is a mockery. It makes a mockery of this very provision in this piece of legislation.

In addition to this, we know that the government did try and get rid of the better off overall test that was there in the 1998 legislation and was removed in the 2007 legislation. I know that the Liberal Party has been desperately wanting to get rid of the better off overall test or the no-disadvantage test—it’s been called many things—and this was a pretty sneaky way to get rid of it. We know what the better off overall test does. The better off overall test makes sure you can’t go below the award. It actually ensures that there is a safety net in this country. We now know that the government’s backtracked on it. But the fact it was in there at all shows what the intentions really were. It shows what the government wanted to do: get rid of the safety net.

We know they have also allowed for a two-year extension of the flexible work directions brought in with JobKeeper. The original directions to accompany JobKeeper were introduced on the basis that they would be temporary and only connected to employers receiving JobKeeper. These flexible directives allow employers to direct duties and locations of work. But as so often happens with this government it’s now using what was originally a short-term measure to try to permanently water down the rights of individuals by stealth. This is what it’s doing. It is once again not surprising that this means for workplaces covered by specific awards that special flexibility will be available to every employer, even those that never qualified for JobKeeper.

We worked very hard to work with the government when it came to this pandemic. We worked very hard. We called for JobKeeper and we supported JobKeeper. But what we now see as we come out of this pandemic is that the government is using it as cover. It’s using it as cover to actually extend some of these provisions to ensure that they actually apply to all employers, even if those employers were booming over this crisis. We know that some businesses did very well. Even they will be able to avail themselves of this. They will not have to satisfy any turnover test. The employer just needs to believe it was necessary to give a directive to assist with the revival of their enterprise.

The government have also in this legislation removed, like I said, its better off overall test, but they’re also cutting bargaining rights and protections for workers whose pay and conditions are covered by agreement. Taken as a whole, these changes to enterprise agreements amount to fewer obligations on employers, less scrutiny and a reduction in the union’s capacity to participate in the approval process. The government think that watering down the role of unions is a good thing. They think, ‘This is great.’ But what they don’t understand is that there are many people that rely on their union for a voice. If power is just one way, it will never end well for employees. But the government have a one-eyed view. As I said at the beginning, they shed crocodile tears when it comes to workers and their rights and conditions, but then they do another thing when people are not looking. Through the pressure that many ordinary Australian workers have put on the government, they have backed down when it comes to the BOOT, but this bill still allows for making agreements that are below the safety net, cutting wages and creating unfair situations.

Of course there are a lot of problems in this bill, but I want to go to the last issue, about wage theft. I have to say that for the Attorney-General to get up and say that somehow Labor’s for wage theft and the Liberal Party coalition is not is absolutely hypocritical. We have a government that has shown no interest in dealing with the issue of wage theft, and on this side of the House we regularly raise it. I and others have regularly raised it in many forums as a serious issue in this country. Of course, what this bill actually does—once again, you’ve got to look at what it does—could override the strong wage theft laws in Victoria and Queensland, giving workers in those states fewer rights and protections. You’d think that, when you’re looking at best practice, you’d rise to the highest level around the country and pick the best laws when it comes to wage theft, but instead we have a government that is now putting in some sort of provision that could actually make workers in those two jurisdictions worse off, with fewer rights.

All in all, when it comes to this bill, I do recognise that the government finally backed down on abolishing the better off overall test, but I would say to workers in this country: keep an eye out, because this government and the Liberal and National Party governments before it have always looked at ways to water down wages and conditions in this country. It is in their DNA. Watering down wages and conditions is the thing that unites them. They’ll look at it every way. The only reason we don’t see the abolition of the BOOT in this piece of legislation is that they’re scared of the Australian people. That’s the only reason, because it’s in their DNA to pursue this. They’ve done it time and time again, and my message to Australian workers is: be on guard. This is a government that wants to water down your wages and conditions.

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