Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021

18 March 2021

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 is a complex bill. It is an important bill to many people, for many different reasons. Unions see it as an assault on workers. Employers are looking to protect themselves from a potential back pay liability, first and foremost. Some want to seize an opportunity to push for significant changes to employee conditions and what they call reform of the Fair Work Commission's procedures. It is not so much a compromise bill as a mess of a bill.

The principal reason for this bill was the court cases that potentially brought about a back pay liability for employers. That sent a shudder through every small-business person, in particular. Along the way, government decided to add in components that simply wouldn't cut it for many employees and the unions that represent them. The BOOT test is a very good example of a component that ultimately was in fact dropped. Here we are today debating an omnibus bill that deals with a raft of issues, not just the principal reason for the bill. This is not acceptable to me, nor to many others in this place.

So what is Centre Alliance doing? We're paring back our support to the most important elements of this bill, with appropriate amendments. Of course, this includes supporting enhanced protections against wage theft. We are dealing with the matters that matter the most, starting with schedule 1, which will give employers, and particularly small business, vital certainty about casual employment, and schedule 5, which will enact civil and criminal penalties against wage underpayment. The bill will also retrospectively prevent the so-called double dipping of entitlements. While this will draw a line under the massive outstanding liability, we will move an amendment to ensure that any casual employee who currently has a claim for unpaid entitlements before the courts can still finalise their case under existing laws. This respects the basic principle that people be able to operate under the laws that existed at the time they took action.

A right to casual conversion also forms part of this bill, but the current drafting means almost all power lies with the employer. This isn't necessarily a problem, as employers do need to be able to decide who they hire and in what capacity. We also don't expect that many employees who will seek to convert from casual to permanent would elect to challenge their employer on this. However, we do consider it is important that employees have some means of pursuing an application if they feel they have been hard done by. The government has proposed using the small claims court and conciliation process outlined in schedule 5, which we think is a good option, should employees wish to pursue it.

We will not support the remainder of the bill. It goes well beyond what's needed. It is at times heavy-handed in the way it attempts to address problems in the Fair Work Commission. In other instances, it seeks to legislate matters that are already being dealt with in the courts. By supporting just schedules 1 and 5 we will address the most important and urgent issues which need dealing with right now to provide certainty for employees and, particularly, for small business.

Incredibly, I'm somewhat gobsmacked that I have just received—and everyone in this chamber has just received—the government amendments. These show they're dropping schedule 5—dropping the very same schedule that relates to wage theft. They're dropping it, despite almost every speaker, including the speaker who was just before me, Senator Fawcett, speaking very positively about it. How can they do this? Shame on you all for trashing such an important amendment!

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