Dr HAINES (Indi) (17:08): I rise to speak on this bill, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2020, for two reasons. First, I want to acknowledge the piecemeal progress that’s been made on this bill so far and express my concerns about specific provisions that need a lot more work and compromise before we can call this sensible, consensus-driven reform. Second, I want to express my total disappointment, on behalf of my constituents, in the political opportunity both major parties have wasted here to put swords down and negotiate reasonable, good-faith reforms, as initially intended. Frankly, it’s pathetic that this is the best compromise the opposition and the government could come to on this. I believe it highlights the endemic lack of cooperation and humility on both sides to work together for all Australians.

To be clear, there is an absolute need for industrial relations reform. I was encouraged to hear the opposition leader and the government talk about the roundtable discussions last year as a consensus driven process, akin to the accords of the 1980s and 1990s, on refining our current system. ‘Refinement’ is a key word here. According to the most recent independent economic review of the workplace relations system conducted by the Productivity Commission in 2015, the system isn’t totally dysfunctional; it needs ‘refinement’ and ‘repair’. Refinement requires total attention to detail. Refinement requires an absolute focus on policy, not politics. Refinement requires deep consultation and inclusion. I’m not convinced we’ve achieved that here.

There are some good features to the bill that I think it’s important to acknowledge. First, I believe that the response in this bill to the Rossato decision, which allows employers to offset previous casual loadings against retrospective entitlements, is measured and appropriate and responds to the real concerns of small businesses, who would have struggled to implement the Rossato decision in full in such a difficult economic climate. Those provisions also ensure that those retrospective entitlements do not disappear in their entirety and that those casual workers who have been entitled to minimum benefits can access them. This is a good example of middle ground.

Second, I want to welcome the decision to remove the controversial change to the better off overall test, which was ambiguously drafted and could have led to the progressive erosion of baseline employee rights that have been the agreed bedrock of our industrial relations system for generations. One does have to wonder, though, whether such a controversial proposal was deliberately included by the government so that it could be removed at a later date as a signal of good faith bargaining. It would be disappointing, of course, if that were the case. It would be even more disappointing if the government had used the community’s political unity around COVID as a smokescreen to bring on partisan reforms. Just this week, a panel of public health experts from the ANU warned that the provisions in this bill which could erode access to sick leave and other entitlements would actually exacerbate risks in our COVID-19 response and recovery. How deeply ironic, dangerous and disappointing if that were true.

There are also a number of provisions in this bill as it currently stands which need refinement. First, the wholesale revision of the common law definition of a casual worker is problematic and overemphasises the initial terms of employment. We know that prospective employees are deal-takers as opposed to deal-makers when it comes to initial contract negotiations and that a job can sound very different on paper or in an interview compared to what it’s actually like in real life. It’s obvious to me, small businesses and casual employees alike that this provision needs more work.

Second, more work needs to be done to resolve the arbitration question in the casual conversion provision. I believe casual employees who end up working like permanent employees must be recognised as such. I also believe commercially minded employers who care about business certainly want this too. But, when this pact breaks down and requests for casual conversion are rejected, employees must have somewhere to go that’s not burdensome. While the International Labour Organization argues there must be an absolute right to arbitration in these circumstances, it’s true that such a right is not an absolute feature of our current industrial relations system, including the dispute resolution provisions of modern awards. There is a way to get this right, but I have not heard either the government or the opposition propose a middle ground here, despite the incessant back and forth during question time for the past week. For example, the unilateral right of an employee to arbitration by the Fair Work Commission could be activated after both parties have participated in a conciliation process led by the Fair Work Commission. This would not require consent from both parties.

Third, I believe the extension of the flexible work duties and location provisions for two years needs further justification. It’s absolutely true that small businesses need the flexibility to work with their staff to innovate and redeploy resources to keep their businesses alive and thriving through the post-COVID recovery. It’s also important that the power to do so is not unfettered. As the bill is currently drafted, any employer would be permitted to redeploy staff in their business if it would reasonably assist in the revival of the employee’s business. This has the potential to be far-reaching and we need to be crystal clear about what is and is not captured by this, firstly, to protect employees from exploitation but also as a tool for businesses to ask themselves: is my recovery strategy commercially sensible and viable? I’m not convinced the provisions help businesses to do this.

The list of issues in this bill that need further good-faith discussions between the government, the opposition, the unions, employers and so on is infinite. The 15 minutes I’m allotted is nowhere near enough time to cover other issues like changes to the minimum size of greenfield agreements; the workability of new criminal offences for wilful theft and the systemic underpayment of employees; or what employers must do to satisfy themselves that culturally and linguistically diverse employees understand the EBA they’re voting on. This tells me loud and clear that this is not a good-faith consensus bill. In fact, the only thing that’s loud and clear about the bill is that it is complex, unresolved and being politically weaponised to an unreasonable extent.

I’ve spoken to countless casual workers, small-business owners, local unions, major employers, chambers of commerce and other stakeholders across my electorate of Indi over the past six months about the status of these reforms since the ‘swords down’ moment of mid last year. It might surprise others in this chamber to learn that these groups which the government and opposition have pitted against each other over this bill in a pseudo-election campaign are actually united by one thing in my electorate: their collective confusion and disappointment about the political hijacking of this issue instead of a focus on constructive conversations. Just this week I spoke to the CEO of Business Wodonga, Neil Aird, who told me that the bill needs more work and that he was concerned that many small businesses have only heard the political headlines in this debate. He was concerned many small businesses and HR advisors alike are still unsure exactly what this bill aims to do and how it does it. That’s a total failure in proper political communications, in my view.

When I met with small-business owners and casual hospitality and retail workers in the main streets of Alexandra, Yea and Marysville earlier this month, I did not hear the same crude, media savvy lines I hear from the government and opposition over and over again in question time. Not one casual worker I spoke to was jumping up and down shouting, ‘This is a cynical ploy from a cynical government,’ like the opposition leader did last week. Not one business owner was saying, ‘Labor has its head stuck in an ideological rear-vision mirror, selling unbelievable untruths,’ like the Attorney-General did earlier this month. Instead, employers were saying constructive things like: ‘We’re really keen to get new staff in and make sure we can offer them good hours and conditions to keep them around.’ Employees were saying things like: ‘I’m part time and keen to do extra hours, but I haven’t had time to sit down and look at my contract and figure out how to ask for that.’

If you want a case study in how political rhetoric gets in the way of reasoned progress in this country, I reckon this bill is it. In his Press Club speech announcing these reforms, the Prime Minister said industrial relations is:

… a system that has, to date, retreated to tribalism, conflict, and ideological posturing.

Well, I reckon we have it on full display now, don’t we? I’ve not seen one single detailed amendment from the opposition on this bill—not on the Notice Paper, not in the media, not in meetings in this place. Not one. They’re called the Labor Party. This is meant to be the opposition’s bread and butter. But how on earth are we to achieve the Productivity Commission’s recommended refinement and repair without any good-faith proposals from them to make this bill better?

I’m going to oppose this bill today, not because I think it’s unsalvageable—I don’t want to run a scare campaign and kick up dust on a possible political election issue, like others in this place—but because there’s so much more work to be done on this bill that has not been done. That’s just bad policy and bad politics. I’ve been working and will continue to work with Senate crossbench colleagues who are thinking about this bill very carefully, and I’ll assess it again when it almost inevitably comes back to this House amended. That’s because I assess each bill based on policy merit, not on political ammunition. In the meantime, I call on both the government and the opposition to step up and to do better, be better and deliver better on this bill.

Sign up

Keep up to date with the latest news and information