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Stage two of workplace reforms: Challenging the status quo for casual workers

Workers win more rights

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There are big changes on the way for Australian workers with the Senate passing the second part of major workplace reforms that the government says will “close loopholes” that have undercut wages and conditions.

At the heart of the legislation that became law earlier this week are amendments to the definition of casual work, minimum standards for gig and transport workers – and workers’ so-called “right to disconnect”.

It follows Industrial Relations Minister Tony Burke introducing the first tranche of the broad workplace reform to parliament last year.

The legislation was quickly split into two parts. The first included improved terms for first-responders, better access to compensation for silicosis sufferers and, most controversially, the “same job, same pay” amendments. It became law in December.

The second section went before the Senate earlier this week, after a report from the parliamentary committee established to examine the Closing Loopholes Bill. The bill was released on February 1 and passed on Thursday.

But not everyone is happy

The main parliamentary committee report was generally supportive of the changes but Coalition senators were scathing.

They released a dissenting report that concluded, perhaps predictably, that: “This bill should be opposed. It is bad for jobs; it is bad for workers, and it is bad for employers.”

But the senators were just getting warmed up.

“It will be a jobs killer and increase unemployment,” they warned.

Wow. That sounds really bad.

But they weren’t done yet, even using an apparent tip of the hat to Labor heroes of a bygone era to offer further criticism.

“We can only speculate what former Labor luminaries from the Hawke and Keating governments – not to mention the more economically literate union leader (sic) of that era – must think,” the senators wrote, about what their report said was “the Albanese Labor government’s zealous attempt to return Australia to an arcane centralised wage-fixing system”.

But there is at least a bizarre, if not misinformed, irony at the heart of that claim. 

Despite what the government is trying to do with its most workplace changes – and although a far cry from any pre-1980 truly centralised wage setting – Australia still has a relatively centralised wage-fixing system. 

You might have heard of it. It’s called the award system and it’s been around in some form or another, setting minimum employment terms in Australia, in a centralised manner, for longer than most of us who are of working age have been alive.

And despite Coalition senators warning of imminent doom, not everyone agrees. Independent senator David Pocock, who along with Tasmanian crossbencher Jacqui Lambie, had a deciding vote on the bill, formed his own view.

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Senators David Pocock and Jacqui Lambie had deciding votes on the bill.

“One of the things that I had not realised about politics … Is just how informative the Senate committee processes are,” Pocock said in a Senate speech on Wednesday.

“We’ve heard some pretty wild claims in here about what this bill does and doesn’t do … I think some of the claims we’ve heard are not based in fact or in the legislation that is in front of us now”.

And – perhaps channelling the sentiment of lay political observers – Pocock said: “I think Australians are tired of politicians who cry wolf, who try to whip up fear, telling people that the sky is going to fall, and who aren’t willing to engage and improve things for people.”

For the record, he voted in favour of the bill.

Great! What will change?

The laws passed on Thursday include some that have been covered in detail many times before. 

They include what look to be world-leading reforms to offer protections and minimum conditions for gig economy workers, minimum standards for road transport workers, and the ability for independent contractors to challenge unfair contract terms in the Fair Work Commission, as a more flexible and cheaper way to resolve disputes.

Other key changes include a new definition of casual employment that is similar to what it was before Morrison government’s 2020 amendments. The FWC also gains the power to waive the 24 hours’ notice that union officials must give in some circumstances to investigate underpayments.

Tell me about ‘right to disconnect’

The final piece of this reform puzzle, the right to disconnect, was not initially a part of Burke’s original legislation.

It was proposed later by the Greens as a condition of their support for the government’s changes.

Essentially, the legislation now requires that a modern award must include the right to disconnect – that is, the centralised award system will have to provide a term that allows workers to refuse to respond to unreasonable out-of-working-hours requests from a boss.

It also creates a dispute resolution mechanism for the FWC to settle any disagreements about such refusals.

Now that Labor’s “closing the loopholes” legislation has passed parliament, the true effect of the laws will take time to emerge, particularly in the complex area of gig work.

One thing is assured though, your employer probably won’t be able to force you to stay up all night talking about it.

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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