The government’s Closing Loopholes workplace reforms are facing more headwind with crossbenchers Jacqui Lambie and David Pocock winning the Senates support to “split” out what they say are the most urgent reforms in the government’s package and deal with the more complex changes – like gig work reforms and same job/same pay – next year.

On Thursday morning the Senate crossbenchers, with the support of the Coalition, led by Michaelia Cash, endorsed reforms which were sponsored by independent Senator David Pocock because he says, “first responders, people at risk from silicosis, small business employees and survivors of domestic and family violence shouldn’t have to wait for the added protections contained in the legislation”.

But if the crossbench proposal is to succeed, it must now be passed by the House of Representatives where the government has the numbers.

The move creates a difficult political position for the government, with the Closing Loopholes reform package – sometimes described as an ‘omnibus bill’, because of the large number of matters it covers – having faced some vicious opposition since being introduced by Tony Burke on September 4, 2023.

‘Extreme, interventionist’

Following the Closing Loopholes release, Minerals Council of Australia chief executive Tanya Constable described it as the “most extreme, interventionist workplace changes that have ever been proposed in Australia”.

Ms Constable slammed the government’s reform proposal further, claiming it “locks in reverse onus of proof, capturing businesses and forcing them to litigate their way out”.

Now I don’t know about all that, but I do know that the concept of a reverse onus of proof in some employment law contexts – such as discrimination – is nothing new, having been established some 100 years ago in the Conciliation and Arbitration Act, an early predecessor to the Fair Work Act.

In contrast, the union movement has expressed broad support for the reforms, with ACTU president Michelle O’Neill on Monday saying: “Right now, the most important job for politicians should be to get wages moving in the right direction. We urge them to pass the whole of the Closing Loopholes bill.”

And getting on with the job is what these problems require. And traditional adversaries aside, there are many that recognise the current industrial relations system does have a number of significant holes that require filling.

Senator Pocock has himself said: “This isn’t about leaving any workers behind; it’s about bringing forward simple changes that have broad support and will improve worker safety and protections” but that “other parts [of the government’s] Omnibus bill are more complex and require time to properly examine.”

So, as can often be the case in the Parliament, many agree on the problem, they just don’t yet all agree on what the solution is. Kind of like if the senators were to all head out to dinner together. They could probably all agree that they were hungry, but good luck getting all 76 of them to agree on what to order.

Opposition for opposition’s sake

And there are of course those that struggle to find their way into agreement.

In September, Deputy Leader in the Senate, West Australian Senator Michaelia Cash, led the Senate to push voting on the Closing Loopholes bill back until February next year to “give this chamber [the Senate] the opportunity to properly scrutinise it”.

Which could all sound very well intended, although I’d doubt very much that it is.

Gig economy workers are missing out. Photo: AAP

Because it should also be remembered that for all the seemingly pragmatic ‘we need time to consider this’ rhetoric from Ms Cash, the likelihood of her and the Coalition supporting any workplace reforms proposed by a Labor government is close to nil. That is, of course, if track record is anything to go by.

During her 15 years in the Senate, Ms Cash has had the opportunity to contribute to workplace reforms proposed by two Labor governments and three Labor prime ministers. And has she supported the reforms proposed by Labor? Not many.

Shortly after being elected in 2008, when the Fair Work Act was introduced to replace Work Choices, Ms Cash opposed that. A few years later, in 2010 when a Labor government proposed to amend discrimination legislation, she also opposed that.

Then, in 2011, when a Labor government proposed changes to paid parental leave, Ms Cash opposed that. And in 2013 when the Gillard government proposed further changes to the Fair Work Act? Yeah, Michaelia Cash opposed that too.

Despite all that opposition, each of those reforms I’ve referred to did in fact pass and become law.

Take the politics out of the problem

Well intended or not, the Coalition’s moves to support the crossbench proposal has charged some political dynamite for the Labor government and their reform package.

Labor is now vested with the deciding votes to take one of two pathways.

They could rush through the four important but uncontroversial reforms proposed by Ms Lambie and Mr Pocock endorsed by the Senate on Thursday.

Or they could strike them down and continue to pursue passage of the Closing Loopholes bill in its entirety. A bill which contains several other key reforms that have been many years in the making and will still require crossbench Senate support to pass.

Despite loud scaremongering, after the reforms were first announced by Mr Burke, I wrote here suggesting that the details would likely change in response to feedback from industry and negotiations with crossbenchers.

That has now occurred, with concessions to the gig work reforms also announced Thursday in the AFR following submissions from Uber, Menulog and DoorDash.

Similar concessions have also been made in relation to same job/same pay.

And while separating the bill to deal with some of the most straightforward and urgently needed reforms first may be a sensible pragmatic step; it ushers in an increased political risk that the other more complex elements will be put back in the bottom drawer and left there forever.

Important but complex reforms like those to gig work may sit around gathering dust while the political will to make change wanes, meaning critical problems for workers in the gig economy and elsewhere go unaddressed.

Alternatively, if the government rejects the “split bill” approach of dealing with some of the less contentious parts first, it may run the risk of pouring fuel on a smouldering fire and jeopardising the entire package.

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.