This article is re-published with the permission of Workplace Express.
Pauline Hanson’s One Nation says the Morrison Government’s Omnibus IR Bill is “sadly lacking” on a range of key measures, including proposed changes to casual employment and the Better Off Overall Test.
The party’s IR spokesperson, Senator Malcolm Roberts, has called for substantial amendments to the Bill, arguing it will “hurt many businesses and affect the working conditions and take-home pay of many everyday Australians”.
The senator says in a submission to a Senate inquiry into the Fair Work Act Amendment (Supporting Australia’s Jobs and Economic Recovery) that the changes are aimed mostly at big business and the “IR Club” rather than small to medium employers.
“We do not see genuine reform,” he says.
“This is more words in legislation, more rules and more vagueness in complex definitions.
“The outcome of this Omnibus IR Bill is that it will not create certainty for people who just want to get back to work.
“It will add to the complexity of business life.
“Australia’s industrial relations system no longer serves employers and employees; it serves the people who benefit from its complexity.
“The IR Club, the class action lawyers, union bosses and the big employer organisations all earn money which could be better spent by employers and employees on securing jobs and income.”
With Labor and the Greens opposed to the Bill, its fate looks set to turn on the votes of five crossbench senators – Jacqui Lambie Network’s Jacqui Lambie, PHON’s Pauline Hanson and Malcolm Roberts, Centre Alliance’s Stirling Griff and South Australian Independent Rex Patrick.
Senator Roberts, a former coal mine manager and engineer, has long complained that big employers have abused casual work arrangements in the coal industry through the use of long-term labour hire arrangements (see Related Article).
The Bill’s proposed definition of casual employment determines an employee’s status based only on the original offer made to the employee, without taking into account “any subsequent conduct of the parties”.
Senator Roberts argues in the submission that IR Minister Christian Porter is “trashing the ‘long term flexible but predictable’ casual employment arrangements that suited many small business employers and employees”.
He is doing so, he says, because of abuse by “big business”, citing as an example labour hire arrangements in the coal mining industry.
Senator Roberts says the legislation will mean that a person is a casual employee if the employer makes an offer of employment on the basis of no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.
“It is arguable that a consequence of these provisions as they are envisaged is that, if an employer does not make an offer in the exact terms (be it in writing or orally), the employee will, at law, be considered a permanent employee as they will not fall within the definition of casual employee.
“Many employers, especially small business employers, are unlikely to offer casual employment to a person in such clearly defined terms.
“This is particularly the case when an offer of employment is made orally which is more common than formalised employment arrangements.”
The senator says that an employer might consider they have offered casual employment but, if they have failed to meet the prescriptive terms, that employment will be permanent by default.
“This is likely to lead to significant confusion among employers and employees about their employment relationship and the entitlements that derive from the characterisation of the relationship,” says Roberts.
“Conversely, an employee who falls within the definition of casual employee at the commencement of employment but whose nature of employment subsequently changes, is nonetheless deemed to continue to be a casual employee.
“While casual work is not for everyone, rewriting it as the Government has done may have many unintended consequences for everyday Australians, such as pay cuts and rosters that change from week to week to protect the employer from creating a ‘firm advanced commitment’.”
BOOT change also problematic
Senator Roberts also argues against the Bill seeking to allow a two-year window for the FWC to approve enterprise agreements that do not meet the BOOT where the employer has been affected by the pandemic.
He says the Fair Work Act already allows the Commission to approve an agreement that does not pass the BOOT if it is satisfied that, because of exceptional circumstances, the approval of the agreement would not be contrary to the public interest.
The proposed change is an “unnecessary amendment and, furthermore, significantly dilutes the fundamental protection of the BOOT.”
“I propose that the government keeps the BOOT as it is and ensures that the FW Commission has better governance to review and to improve agreements – due diligence not a rubber stamp.”
Senator Roberts also calls for the Morrison Government to:
- create a dedicated small business award or enterprise agreement;
- simplify the small business code and reduce the maximum compensation payable by small businesses in dismissal cases from 6 months to 3 months;
- review and rewrite the entire Fair Work Act and IR structure, after the two-year deadline for the flexible arrangements expires in about 2023;
- focus the efforts of FWO inspectors primarily on solutions rather than penalties; and
- introducing longer-term greenfields agreements for “tier 2” Australian construction companies.
