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IR Omnibus bill: the devil is in the detail

Speeches in Parliament
Adam Bandt 18 Feb 2021

Before I came to this place I spent 12 years working as a lawyer in employment, industrial and public interest law, looking at exactly these kinds of laws. When a bill like this comes before the parliament, you've got to look carefully at what the words will actually do in practice. If this bill passes, insecure work will spread like wildfire across the country. That's because this bill does three key things. Even after the better off overall test was dumped—which may have been an ambit claim from the government; I don't know—this bill does three key things. The first is that it lets employers call you casual even if you're not, and there's nothing you can do about it. The second is that it spells the beginning of the end of full-time work contracts, because it introduces into the system a new form of contract where the employer can employ you part time and then put your hours up or down as the employer wants. And the third thing it does that the government doesn't tell you about is take an already difficult process of bargaining for better wages and conditions and tilt it even further in the employer's favour, making it harder for you to ask in your workplace for what you're entitled to.

The bill does a number of other things as well, but I want to spend a bit of time talking about these three key things, because the government won't tell you about them. Those three things, if they pass in this bill, will spread insecure work like wildfire across the country and change the face of the labour market in one of the most significant changes we've seen for decades. Firstly, what does the bill do about casual employment? We already know that insecure work is a massive problem in this country. And we've seen that during COVID. We've seen people who are stuck on casual or insecure contracts being forced to make that terrible decision: 'Do I come to work knowing I'm sick and potentially put myself and others at risk or do I stay home but miss out on pay because I'm a casual employee and I'm not entitled to sick leave?' And we've seen that the awful choices people have been forced to make contribute to the spread of this virus. But we also know that casual and insecure work over many years is a virus for people's lives, because it makes it difficult to plan—not only to plan what you're doing from week to week but to plan your whole life. It makes it difficult to go to the bank manager and try to get a mortgage. It makes it difficult to make plans about a family if you don't have a secure income. So we know it's a problem already. This bill's going to make it worse.

The first thing it's going to do is allow employers to say you're a casual employee, even if you're not, and, once the employer has said you're a casual employee, you can't challenge it. This bill's definition of 'casual employee' says that, if the employer says you're a casual, you're a casual. That's basically it. That means that the problem of insecure work is going to get worse, because, even if you work a regular span of hours for someone and in ordinary circumstances you should be entitled to get sick leave, annual leave, and all of those entitlements that come from being a part-time employee or a full-time employee—even if, by law, you're entitled to those things—it won't matter, because the employer will have said at the start of your employment, 'You're a casual,' and then, under this bill, what the employer says goes. We've seen exploitation of people. People who should be entitled to some sense of security and to some decent conditions like holiday pay and sick leave are going to be denied it simply because the employer says so. So that is reason No. 1 that this bill should be opposed.

Reason No. 2, which hasn't got a lot of attention but deserves to get a lot of attention, is that this bill is the beginning of the end of full-time employment contracts. At the moment, if you work more than 16 hours a week—say you work 25, 30 or 35 hours a week—you might sign a contract or respond to a job ad that says your job is a 25-, 30- or 35-hour-a-week job, and you then get all your pay and conditions on that basis. If you're asked to work more, you should get overtime or you have the right to say no. But you know that that's how many hours a week you're going to get. This bill introduces a new form of employment contract that says the employer can put you on a minimum of 16 hours a week and they can then go up or down after that, basically at their whim, and you're not going to get any additional entitlements for working those extra hours, even though it actually counts as overtime. Not only is it going to hurt people who already work these part-time arrangements, because they're going to end up with less money in their pockets, but it's a threat to people who have full-time jobs as well, because all of a sudden an employer, instead of advertising a 30-hour-a-week job or a job that has decent hours, can now just offer a 16-hour contract and say, 'Oh, look, from week to week, I'll give you the odd day here or there, basically at my whim.' That is going to make it impossible for people to plan their lives. That is going to make it incredibly difficult to go and get a mortgage. Forget about a mortgage; if you don't know from week to week how much you're earning, it becomes even more difficult just to pay your rent.

So this problem that we have in Australia at the moment, where only four out of 10 people working are under standard employment arrangements, is going to get worse because, firstly, if the employer says you're a casual, you're a casual, even if you're not; and, secondly, if you want to work a job with decent hours, the chances of doing that have just been diminished because the employer has access to this new part-time flexible arrangement that's going to turn full-time or close-to-full-time jobs into a form of insecure work.

In a context where the government and the Reserve Bank and everyone say, 'Jeez, we'd like wages to be higher to get the economy going and for people to have their money in their pockets,' this bill is going to drive down wages, because people are going to feel less confident about coming and asking for the payment that they're entitled to, because the employer is going to hold all the cards. Indeed, it's going to give them even more of the cards, and that's the third problem with this bill. Under this bill, when you go and negotiate an enterprise agreement—because the government says, 'Well, that's your way to negotiate yourself above this really low award'—the employer no longer has to even show you the full agreement. You could be asked to sign up to something without the employer having to show you what the whole agreement actually is. All the employer needs to do under this is say, 'When it comes to hours of work and changing your hours of work, you've got to abide by company policy.' And you might think, 'Well, I want to know what the company policy is before I sign.' They don't have to tell you, if this bill goes through. You're signing your rights away and giving the employer a blank cheque.

You might think: 'Well, I'll tell you what: that doesn't sound fair. I want to go and talk to my union and get advice about whether I should sign this agreement or not.' What the government is doing under this bill is extending the amount of time before the employer has to tell you that you're allowed to go to the union. It's going to go out by a couple of weeks, from 14 days to 28 days, during which time the whole agreement might have been completed. In other words, the employer is able to say: 'Here, sign this deal. You've got to sign it. This is the only way you're going to get a modest pay rise.' You might be signing your rights away. They don't have to tell you that you've got the right to see a union. They'll tell you a month later that you can go and see a union, but, by that time, it might all be done and dusted. So there is less that they have to tell you. They don't even have to tell you what the agreement that you're signing up to is. They don't have to tell you, before the bargaining may well be, in fact, concluded, that you can go and join a union.

But, also, if you do enter into one of these agreements, when you take it to the Fair Work Commission to get it approved, there's a sneaky little clause in here about the so-called minimum conditions of the National Employment Standards, which are meant to be the legal minimum that everyone is entitled to. The commission can now basically apply a pretty rubbery test about whether the agreement goes below those. So they're changing the test about whether or not the agreement even meets the legal minimum in this country.

That is why I say—and I think anyone who understands industrial relations law and employment law and looks at this clause by clause can come to no other conclusion—that this bill is one of the biggest threats to secure employment that we have seen for a very long time. This bill will spread insecure employment across this country like wildfire, even as, at the moment, insecure employment is at peak levels and posing a threat to people's ability to plan their lives. We already have too many people suffering from insecure jobs. When the government say, 'It's okay; unemployment is coming down because we're getting more people into jobs,' what they don't tell you is that a big part of the growth in jobs is in crappy jobs where you work an hour or two a week. People may not know this, but, if you're employed for one hour a week, it counts in the statistics as being employed. So we're seeing more and more people being put in these crappy, low-hours, insecure jobs, and this bill is specifically designed to make it worse.

So this bill has to be rejected. I say to the members of the crossbench who are thinking about how to vote on this bill now that the BOOT test has been dropped: if this bill passes, there's going to be a flood of constituents coming in, once this starts to bite, saying, 'Why can't I get a full-time job anymore?,' 'Why am I only guaranteed part-time hours of work?' or, 'Why is it that I'm not a casual but I'm told I'm a casual, and I can't go to court or to the Fair Work Commission to challenge it?' That's what will happen if this bill passes.

The devil is in the detail, and the detail is devilish, because it will change the face of the labour market in this country, in the biggest reform that we've seen since Work Choices, in a way that is designed to spread insecure work, drive wages down and drive conditions down. Sober analysis of this bill, even if you're someone who doesn't sit on a union or on an employer side but you just look at this and ask what's best for workers—as someone who has spent 12 years working in this area, I'll say this—shows that the legislation does a lot more than the government is saying. It attacks some of the most fundamental things that we take for granted here about how work is organised in this country. It is going to hurt people, if this passes.

I think we need to scrap this bill and start again. We need to outlaw insecure work in this country. Insecure work has spread to the point where people don't have the ability to plan their lives in the way that they used to. We need to outlaw insecure work and get back to the point where every job is presumed to be ongoing unless there's good, sound business reasons otherwise. If you are running a small business, an ice-cream shop, and it is only open over summer, then yes, sure you can put someone on for three months to work over summer as a casual on a short-term contract. Of course there are always going to be sensible reasons for it, but it has gone too far in this country.

I remember someone coming and giving evidence to an inquiry when I introduced a bill to tackle insecure employment several years ago. She worked at a university for close to 10 years without being entitled to a day of sick leave, even though she did the same job in basically the same department for 10 years, because she was called a casual for all of that time. There are so many people in this situation who are doing rolling contract after rolling contract and who are doing a bit of work here and a bit of work there. It's not just Uber drivers or food delivery drivers; it's happening everywhere now. It's happening in the aged-care sector. Carers are being asked to care for someone in the morning and then care for someone in the afternoon and they don't get paid for the time in between. It stuffs up their whole day. They can't work or go and do another job, and they only get paid for a couple of hours either end. We need to outlaw insecure work in this country. We can't let insecure work spread like wildfire, which is what will happen if this bill passes, so we've got to oppose this bill.

 
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