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Industrial relations reforms won’t ruin Australia, they’ll make it more equal

You’ve no doubt heard some of the panic surrounding the latest batch of proposed workplace reforms in the Albanese government’s Closing Loopholes bill.

But what are the changes and what problems are they trying to solve?

Maybe I’m living in some kind of employment relations bubble, but it seems my feed on every social media platform is dominated by someone writing a War and Peace-length analysis about how disastrous the proposed reforms will be.

The world, it seems, is nearing its end.

Let’s be clear.

The government has put proposed reforms before the Senate that will only be made law if they can be successfully negotiated with support from a majority of senators.

So before dealing with the reforms, I think it’s helpful to lay out the current political scene in the Senate, as this will have an enormous impact on how much of the proposed reforms will ultimately pass into law.

A mixed bag

The Senate comprises 76 members. That means that for the reforms to pass, they will require support from 39 senators.

In this Parliament, the ALP has 26 Senate spots, the Greens 11 and the Coalition 31. The ALP, with the support of the Greens, can then get to 37 votes.

The two extra votes to get to the 39 is then required from any combination of the crossbench, made up of One Nation (2), Jacqui Lambie Network (2), UAP (1) and independents (3). Without two of them, the reforms will not pass.

Two votes might not seem like a lot, but depending on the political mood at the time they could be a world away.

Like we saw recently, Michaelia Cash led the Coalition – supported by Senate crossbenchers – to delay a vote on the reform package until at least February.

Democracy in action

The crossbench mixed bag may be uncomfortable for the current ALP government, but it is the way that the Senate has been composed for most of our modern history.

Regardless of the issue, the deciding votes being held by a group of people that do not represent either of the two major parties is not necessarily a bad thing.

Many may remember the last time the Senate had a majority of the governing party. Michaelia Cash certainly will.

That Senate was in the final term of the Howard government when the Coalition had 39 of the seats. And it was that Senate which passed the controversial workplace reforms known as WorkChoices.

Tony Burke workplace laws

Workplace Relations Minister Tony Burke says workers and firms will both benefit from the proposed changes.

This meant that in 2005 when John Howard and then workplace relations minister Kevin Andrews sought to pass their ambitious workplace reform package, all they really had to do was negotiate with themselves.

The result was WorkChoices and the swinging pendulum of workplace relations law that we have endured ever since.

What followed was a landslide victory for Labor, which saw John Howard lose his seat in Parliament.

The key issues

The Closing Loopholes reforms proposed by Tony Burke on September 4 are ambitious.

The reforms run to 278 pages and contain several new and complex legal schemes developed to address key issues.

So, what are those issues? Tony Burke has consistently set out the problems that are targeted by the reform package.

Burke describes “the four major ones” as: Wage theft, casual employment, labour hire and the gig economy.

The first, wage theft, doesn’t require much explanation.

Some states, including Victoria and Queensland, already have laws which make deliberately underpaying people a crime. The reforms proposed by Burke will create a similar offence at the national level.

The second, casual employment, is intended to give permanent or long-term casuals greater rights to request a conversion to permanent employment.

Casuals, engaged in a way that resembles permanent employment, would gain the ability to become permanent employees and the rights and entitlements that go with it, such as annual leave and sick leave.

In exchange, they would lose the usual casual loading of 25 per cent.

The third, labour hire, is what has been frequently referred to as the “same job, same pay” laws.

The problem that the bill is looking to solve here is where an employer makes an enterprise agreement with its own employees, then seeks to avoid that deal by going and outsourcing the work, like what Qantas has now so famously attempted (but failed) to do.

It is an issue that occurs relatively rarely, but it does happen, and the government is attempting to stop it.

The fourth is the “gig economy”. I have written previously about the need for reform in this space, as workers in the gig economy generally have very few rights compared to the rest of the working population.

They are often in low skilled employment with little or no individual bargaining power, and ripe for exploitation.

These gig economy reforms currently occupy about 100 of the 278 pages of the bill. The problem is complex, and so is the attempted reform to fix it.

Will the world keep turning? You bet.

The Senate will over the next few months hear from various interested parties about the effects of the proposed reforms, and it is fairly likely the bill will be altered to take into account that feedback, as well as the negotiations that the government will have to win support of at least two  of the crossbenchers.

Once a vote on the final reform package is taken in the Senate, if it does pass and become law, my bet is that the following day the sun will rise again, and life will carry on.

No “blackouts” as Innes Willox has suggested, just a democratic outcome from a democratic process.

Scott Riches is a former union official with the Electrical Trades Union Victorian branch, and a practising employment lawyer. He is also a volunteer in the employment clinic at the Fitzroy Legal Service

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