Parliament Updates

9 November 2022

I rise to make some observations on the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. This has been very rushed. We have had 10 days to consider very important legislation that will have significant consequences. As I said yesterday, objecting to the motion to curtail debate by the government, I have grave concerns about the process the government has undergone in relation to this legislation. What's disappointing is that this aspect overshadows what is good about this bill, and there is much good work in the bill—for example, the provisions dealing with setting the objects in the bill and awards for gender-equal remuneration, which I strongly support, as well as increasing pay transparency to allow for greater visibility of pay scales across business operations, preventing sexual harassment in the workplace and reforming the better off overall test.

These provisions reflect many of the concerns raised at the Jobs and Skills Summit. They make good progress in correcting inequities in the system which I believe are currently holding back the country's overall wellbeing and prosperity. And I fully support the commitment to get real wages moving. There is no denying that we have seen a rapid increase in the cost of living, and wages need to respond so that Australians aren't left behind. I absolutely welcome the recent 15 per cent award pay rise for aged-care workers and welcome efforts to get bargaining between employers and employees moving again. However, perhaps flushed with enthusiasm and eager to keep up the momentum, the government has gone on to propose some less-well-considered changes—in particular, in the area of multi-employer enterprise agreements, which I consider will have consequences that, although perhaps unintended, will nonetheless be negative.

I'm concerned that the speed with which these further amendments have been drafted will lead to unintended consequences, and I would ask the government to consider splitting this bill in two, in line with the second reading amendment moved by the member. Splitting the bill would allow for substantive progress to be made on the areas where we know there is solid agreement and would allow for greater thought and consultation to be given to the more contentious and less-well-formed sections of the bill. The better off overall test changes are good. Multiple examples throughout the history of industrial relations law in this country show that where the settings posed have unintended consequences it does cause damage. Indeed, this bill and the amendments to the better off overall test are an example of the well-intended provision that has had a negative impact on the uptake of enterprise bargaining agreements. The interpretation of the BOOT as better off in every respect has led to the trashing of many good and productive enterprise agreements. I commend the work in this bill to reform that provision and reset the test to its the original intention. This is good work, and there's agreement between both employer groups and the unions that this change needs to happen.

However, it absolutely illustrates the perils of rushing through legislative change. The fact that the government is already flagging its own multiple amendments to its own legislation simply shows to me that there hasn't been a proper consultation and due consideration of such important legislation. There hasn't been the rigour that needs to go into developing this type of legislation. Saying 'that's not our intention' is not a protection, and we will see so many of those unintended consequences, and then all the good work that is hoped to be achieved by this legislation will be undone.

On the information currently available, I don't believe that the amendments the government is proposing go far enough, and I will address these. We've had the bill for 10 days. It's complex legislation and it's taken a great deal of time for me and my team to get various representative groups to get their heads around the issues contained within it. There has not been sufficient time for consultation with our communities, to reach out to business groups, to understand and to make sure they are aware of the implications for them in this legislation—even from the employee's or employer's point of view. There has not been that opportunity.

The arguments by the government and the minister are, with respect, entirely disingenuous. This argument that this is how we're going to get wages moving—like somehow in the immediate next few weeks the Australian public in these sectors are going to have the benefit of wage rises—is so disingenuous. The reality of multi-employer bargaining is that this is going to take years. If these disputes were intractable before with single employers—throw in multiple employers and different-sized businesses and you are going to have intractable disputes for years. Rather than an opportunity to genuinely get wages going in these sectors, you are going to see a stalemate. You are going to see everything grind to a halt. I think that is incredibly poor planning and vision from the government.

My primary concern is for the impact this legislation will have on small business, and this will impact many women. As much as it is always claimed, in many speeches by the government, to be about raising wages in feminised professions, many women have small businesses. Under this bill, small business is defined as having fewer than 15 employees. This threshold is much too low, in my opinion. In Warringah there are at least 370 businesses who would be able to engage in, or be compelled to engage in, multi-employer bargaining under the current definition of a small business as having fewer than 15 employees. The added complexity of being compelled to engage in the multi-employer bargaining process will drive fear into many business owners who are struggling to keep their heads above water and still reeling from the impact of COVID-19. The impact on the mental health of these people is a serious concern.

There are 18 residential aged-care homes and 73 childcare providers across my electorate of Warringah which this legislation could affect, and they're a mixture of large conglomerates, small private and not-for-profit providers. I absolutely support the need for wage rises across these sectors, but I fear that the unintended consequences of this bill could lead to a very anticompetitive environment where bigger players in the sector engaging in multi-employer bargaining with small providers will make it absolutely impossible for small providers to continue. And what will that be as an outcome? The government is saying they are here to try to get wages moving for women, but if we end up with the result of small childcare centres closing down because they cannot compete, and then we have a loss of childcare places, the first people impacted by that are working women.

Small businesses do not have the resources to deal with this complex legislation, and while the government and the unions are consistently activating the line that this won't impact small business and union penetration is too low and therefore there's no incentive to start a multi-employer bargaining process, the very fact that the government is not willing move on the definition of small business being 15 employees means I don't believe that rhetoric. There are not sufficient protections in place for small businesses, and they should be carved out to provide the legislative assurance that their current structures will be protected. It's particularly concerning when it comes to multi-employer bargaining provisions and the ability for employee representatives to join businesses who weren't even involved at the negotiating table of the initial enterprise agreement but who will then be dragged into that at the conclusion of the agreement. That absolutely should be amended.

Common interest should be more clearly defined. At present, it's defined loosely as sharing a geographical location or being regulated by a common regulatory regime. The test should retain the need to consider the extent to which the relevant employers operate collaboratively rather than competitively. I also propose that the Fair Work Commission should be obliged to consider the economic circumstances and relative size and scope of the employer's enterprises in determining whether there is a common interest. The common-interest test should also avoid lumping large enterprises together with small businesses. They will be unable to absorb the cost of enterprise agreements with larger corporations—small enterprises simply won't be able to agree and will be forced out of the market. The public interest test should be supported. So I urge the minister to reflect and to consider the very good amendments that have been put to him. They have been proposed to address some of these concerns. Ultimately, it must be a shorter review period to at least be able to assess the unintended consequences that will result from this legislation.

The approach the government has chosen to take on this is really concerning, because all the good work of some parts of this legislation are so undermined by these really concerning aspects. My biggest fear is that we're going to have this grinding to a halt, where in any kind of single-enterprise agreements the bargaining will actually grind to a halt as businesses, small, medium and large, come to terms with the complexity of this legislation which is being rushed through. I believe that it's such poor judgement by the government.