Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020

By David Smith

23 February 2021

Second Reading Speech, House of Representatives, Australian Parliament House

Tuesday 23 February 2021

Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020

Mr DAVID SMITH (Bean) (12:03): Like many Labor members of this House before me, I rise to speak in this debate to place on the record my opposition to the government amendments in the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 and why they're bad for those in the community I represent. I do that off the back of a quarter of a century working in industrial relations policy and practice in the Public Service and labour movement. I've been involved in dozens of collective bargaining negotiations and award simplification processes. I've seen a procession of acts come and go and I can smell a dog.

To call the changes amendments, although technically correct, does somewhat understate their impact on those in my community who for too long have faced no wage growth, who have faced a cut in living standards when compared to inflation, who for too long have had to scramble to find secure work, who have had to put up with being paid below the minimum award wage because of their form of employment and who for too long have had to work too many casual and contract jobs to pay the bills. Fundamentally this comes down to whether or not you support the social contract that has been substantially in place since the early years of Federation that valued the dignity of socially just work. You are either a child of HB Higgins or a child of HR Nicholls. This government sits clearly in the family tree of HR Nicholls. Workers and their families in my community deserve a better, fairer deal, and it appears they're not going to get a better deal when it comes to their working conditions from this government or any of those opposite.

As I noted in the Federation Chamber last week, before entering this House I worked as the director of Professionals Australia, advocating for and representing science and engineering workers in the private and public sector for more than a decade in both collective and individual negotiations. I've seen firsthand how power imbalances in industrial relations get in the way of genuine productivity, innovation and fairness. Prior to this, I managed industrial relations at the Australian Federal Police Association during the Work Choices era. Back then, a divisive approach to use of individual agreements and undermining of collective bargaining undermined trust in an organisation that requires it as a foundation. My experience across the labour movement tells me that this government's approach to industrial relations change is indeed wrong. This bill is another of HR Nicholls' children.

Labor's test for the bill is simple: will it create secure jobs with decent pay? The answer to this question was no in December, when these changes were first floated, and the answer is still no. Despite the colour and movement, the sleight of hand and the faux bargaining, the Minister for Industrial Relations still has on the table a bill that diminishes the rights of workers. Earlier this week the minister had three opportunities to agree that all workers deserve the minimum wage. We didn't need a cock to crow to understand his response.

The workers and families most likely to be affected by this bill are those in frontline delivery. These are the very workers who have helped us get through the COVID pandemic—the real heroes, in fact, of the pandemic. These are the people in our community who worked on the logistics lines, worked in our supermarkets, kept our community clean and worked in our health and aged-care system. The pandemic exposed the fact that too many people in this country work in low-paid, insecure employment—casuals, contractors, freelancers, labour hire workers and gig workers. These vulnerable workers, the ones who can least afford it, were the first hit and the hardest hit. Rather than taking this opportunity to learn the lessons from COVID-19 and deal with the twin problems of insecure work and flatlining wages, this government seeks to give a green light to cut wages and conditions. People in the Australian community should know it doesn't have to be this way. They should know that they deserve better.

Unfortunately, the bill will still make jobs more insecure and lead to further cuts to pay and conditions. But are we that surprised, really? This is what the government do all the time. As I said earlier, I've been around the industrial relations space for some time. Across that time I've seen time and again the Liberal agenda to drive wages down, to drive casualisation, to drive insecurity under the cover of flexibility, to make it easier to be dismissed and to reduce union engagement and representation—all under the cover of bills with misleading titles: 'more jobs, better pay', 'Work Choices' and now 'supporting Australia's jobs and economic recovery'. These bills never do what they say on the tin—to be the opposite of a model employer in the Public Service, strangling wages growth and accelerating the use of contractors, consultants and labour hire, despite the costs and consequence of webs of commercial conflicts of interest. In the bottom drawer of every coalition member's desk is a copy of Work Choices waiting to be dusted off.

To the bill itself: many on this side of the chamber have outlined the components, but let's recap. Despite protestations from those opposite, this bill makes it easier for employers to casualise jobs that would have otherwise been permanent. Under these laws, if a worker agrees to be employed as a casual at the start of their employment they remain as a casual regardless of their actual work pattern, so long as the employer employs them on the basis that they make no firm advance commitment to continuing in indefinite work according to an agreed pattern of work. In other words, any job can be casual so long as workers are desperate enough to accept it. This will foster the further spread of insecure employment without paid leave entitlements. Most importantly, it removes a big potential liability faced by employers as a result of recent court decisions under which they might have owed back pay for holidays and sick leave to employees improperly treated as casual workers. Even if a worker can somehow get their case in front of a court, if it finds that they were in fact permanent then any casual loading they receive will be offset against any permanent entitlements they are owed.

As part of the National Employment Standards, employers must make a written offer of conversion to permanent employment to casual employees after 12 months if for the last six months there has been a regular pattern of work. However, under what is proposed the employer does not have to make the offer if there are reasonable grounds not to. This makes the provision essentially meaningless and reinforces insecure work.

The bill continues the flexible work directions provision. This is a two-year provision based on the original JobKeeper stand-down directions that were introduced on the basis that they would be temporary and only connected to employers in receipt of JobKeeper. Since then the provision has been extended to so-called legacy employers, employers previously in receipt of JobKeeper. This means that, for the workplaces covered by the identified awards, the special flexibility will be available to every employer, even those who never qualified for JobKeeper, and a worker's right to stop an employer issuing unreasonable directions has been removed by stripping the power of the Fair Work Commission to arbitrate such disputes—a provision which I doubt will be temporary and which in the end, as with much in this bill, moves the power balance too far along to the employer. People deserve certainty in employment, and I cannot see how this provision does this. The bill makes bargaining for better pay and conditions more difficult than it already is. Just look at our own staff bargaining process, stagnating even under the current rules. I will just say very briefly—it's not totally unrelated, given the recent no vote by a strong majority of staff members of parliament—that it's about time that the Minister for Finance sits down with staff and puts a better and more substantive enterprise agreement on the table. If we in this place are going to build a better culture, surely pay and conditions are a foundation for this change. But back to the bill. Taken as a whole, the bill makes changes to enterprise agreements that amount to fewer obligations on employers and less scrutiny of bargaining, beginning with the preapproval requirements and going through to voting, with the reduction in the unions' capacity to participate in the approval process and the way the Fair Work Commission is constrained when considering and approving or not approving an agreement. The government may have put their extreme changes to the better off overall test in the bottom drawer, but the changes to enterprise bargaining will also deliver wage cuts. The changes to enterprise agreement-making amount to less transparency, less scrutiny and no obligation on employers to explain the impact of an agreement to their employees, some of whom may not have English as a first language. Does that sound familiar from this government—less transparency and less scrutiny? It's in their DNA. The bill places restrictions on union intervention in agreement certification, which will see the Fair Work Commission approving agreements without a union that has the knowledge of the award or industry being able to make submissions as to the real impact or burden. We know that benefits from the hard work of union members in securing better pay and conditions go to all workers. We accept that, and we accept that what is good for one worker is good for all. But this is a deliberate measure to try and push unions and their hardworking teams out of the bargaining process, and it is designed to reduce scrutiny, lower pay and undermine conditions.

This bill contains a provision for greenfields agreements for medium infrastructure projects to have a nominal expiry date up to eight years away. These agreements will cut workers out of any say over their pay and working conditions, including the capacity to resolve such issues as reasonable rosters. And there's a kick-up: whilst those agreements must include annual increases on the base rate of pay, there's no minimum amount specified. So they could lock pay rises of less than one per cent per annum into the eight-year agreements, representing a real pay cut of unknown quantity for the life of the agreement. It's taken more than a decade to extinguish many of the shameful zombie agreements of the Howard era, and here again the government is looking to lock in unjust pay outcomes for a generation of unlucky workers. Once again, are we that surprised? This is a government who put to the Australian Federal Police, to its own staff and to all Public Service agencies a floating index based on the private sector wage price index as a pay measure that will entrench low wages growth in the public sector. That is how they lead by example.

This bill also weakens punishments for wage theft in jurisdictions where it's already deemed a criminal act. Once again, this is an area in need of reform but, as always, there's a catch or two.

My consideration on this bill was also about its impact on the economy across Bean and Australia. Working families don't need less employment security. Without measures to create more secure jobs with a prospect of wage rises, workers will have less capacity and confidence to spend, which, in turn, will suppress demand and hurt the domestic economy. We know locally that, when people are in more secure jobs with decent pay, they spend more. More importantly, it recognises the value of their contribution, particularly in so many frontline roles. They deserve certainty. Our local economy doesn't need less job security; it needs more. We don't need less take home pay; we need wages growth.

Last year, Labor stated that measures that reflected agreement from the working groups on industrial relations would most likely be supported. We were open to changes arising from genuine consensus, as we have always been, but that is not what has transpired with this bill. The government has ultimately reverted to type and bowed to the demands of extreme employer groups, using the COVID crisis as leverage and as shameful cover.

I am unable to support legislation that makes working conditions inferior, reduces security of employment and provides employees with less effective collective representation. Working families in Bean and across the nation have again been betrayed by this government when they needed it to be on their side. It never has been. This bill needs to be booted.