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senate vote 2017-09-04#2
Edited by
mackay staff
on
2023-10-27 14:49:33
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Title
Bills — Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017; in Committee- Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 - in Committee - Reach of penalty provisions
Description
<p class="speaker">Gavin Marshall</p><p>The committee is considering the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017, as amended, and amendments (1) to (15) on sheet JH138, moved by Senator Cash. The question is that the amendments be agreed to.</p>-
- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?gid=2017-09-04.22.1) introduced by NSW Senator [David Leyonhjelm](https://theyvoteforyou.org.au/people/senate/nsw/david_leyonhjelm) (Liberal Democratic Party), which means they failed.
- Senator Leyonhjelm [explained that](https://www.openaustralia.org.au/senate/?gid=2017-09-04.22.1):
- > *... item (1) limits the penalty provisions so that they apply to franchisors only if the franchisor influences the franchisee's compliance with employment laws. Items (2) to (6) limit the penalty provisions so that they only apply to franchisors and bodies corporate who knew, or ought to have known, in the ordinary course of business that their franchisees and subsidiaries would fail to comply with employment laws and that the franchisor has a material impact on the franchisee entity's compliance or ability to comply.*
- ### Amendment text
- > *(1) Schedule 1, item 17, page 9 (line 16), omit "affairs.", substitute "affairs; and".*
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- > *(2) Schedule 1, item 17, page 9 (after line 16), at the end of subsection 558A(2), add:*
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- >> *(c) that influence or control has a material impact on the franchisee entity's compliance or ability to comply with one or more of the civil remedy provisions referred to in subsection 558B(7).*
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- > *(3) Schedule 1, item 17, page 9 (line 32), after "known", insert ", in the ordinary course of business,".*
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- > *(4) Schedule 1, item 17, page 10 (line 5), after "known", insert ", in the ordinary course of business,".*
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- > *(5) Schedule 1, item 17, page 10 (line 18), after "known", insert ", in the ordinary course of business,".*
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- > *(6) Schedule 1, item 17, page 10 (line 23), after "known", insert ", in the ordinary course of business,".*
<p class="speaker">Michaelia Cash</p><p>If I recall rightly, Senator Cameron had posed a question to me in relation to the technical amendments that the government has moved, and the question, effectively, went to: does an accessory to a serious contravention need to know that it was part of a systematic pattern of conduct, or is some other knowledge required? Senator Cameron, in response to that question, I can advise that this amendment clarifies that the usual rules of accessorial liability apply to a serious contravention of the act. This means that an accessory will need to know that the conduct in which they are involved is a serious contravention within the meaning of these new provisions, meaning it is both deliberate and systematic.</p> <p class="speaker">Doug Cameron</p><p>I thank the minister for that response. On that basis, can I indicate that we will be supporting the government amendments.</p><p>Question agreed to.</p> <p class="speaker">David Leyonhjelm</p><p>by leave—I, and also on behalf of Senator Bernardi, move Liberal Democratic Party and Australian Conservatives amendments (1) to (6) on sheet 8204 revised 2:</p><p class="italic">(1) Schedule 1, item 17, page 9 (line 16), omit "affairs.", substitute "affairs; and".</p><p class="italic">(2) Schedule 1, item 17, page 9 (after line 16), at the end of subsection 558A(2), add:</p><p class="italic">(c) that influence or control has a material impact on the franchisee entity's compliance or ability to comply with one or more of the civil remedy provisions referred to in subsection 558B(7).</p><p class="italic">(3) Schedule 1, item 17, page 9 (line 32), after "known", insert ", in the ordinary course of business,".</p><p class="italic">(4) Schedule 1, item 17, page 10 (line 5), after "known", insert ", in the ordinary course of business,".</p><p class="italic">(5) Schedule 1, item 17, page 10 (line 18), after "known", insert ", in the ordinary course of business,".</p><p class="italic">(6) Schedule 1, item 17, page 10 (line 23), after "known", insert ", in the ordinary course of business,".</p><p>I won't speak for long. As I outlined in my second reading contribution, item (1) limits the penalty provisions so that they apply to franchisors only if the franchisor influences the franchisee's compliance with employment laws. Items (2) to (6) limit the penalty provisions so that they only apply to franchisors and bodies corporate who knew, or ought to have known, in the ordinary course of business that their franchisees and subsidiaries would fail to comply with employment laws and that the franchisor has a material impact on the franchisee entity's compliance or ability to comply. I commend the amendments to the chamber.</p> <p class="speaker">Doug Cameron</p><p>I indicate that Labor will be opposing these amendments. These amendments have given even more ground to the Franchise Council of Australia. These amendments simply do the bidding of the Franchise Council. They would narrow the already-too-narrow scope of the civil liability offence for franchisors, applying only to franchisors who have a significant degree of control over the workplace arrangements of the franchisee. In the amendments on sheet 8204 revised 2, that has even been toughened up to talk about 'material impact'.</p><p>All these amendments would do is give franchisors an incentive to arrange their commercial relationships with franchisees so that they can claim to have no oversight of or involvement in the way workers are treated or paid. It goes against all the lessons that we've learnt from the 7-Eleven scandal. If the government supports these amendments, it would be a complete capitulation to Bruce Billson and the Franchise Council. It would be a sell-out of all those workers who are being ripped off by companies like 7-Eleven and Caltex, which we've seen so much evidence of over the last period of time. Some of the most vulnerable workers—migrant workers, low-paid workers—are being ripped off by employers who are part of a franchise organisation that sets the rules for these franchisors. So we take the view that agreeing to this would ensure that 7-Eleven would never be fixed and that we would have more evidence and more examples of 7-Eleven coming through. We are about trying to protect vulnerable workers in this country. We are about trying to protect those that are being exploited by companies like 7-Eleven. On that basis, we will not be supporting these amendments.</p> <p class="speaker">Michaelia Cash</p><p>The government will be supporting these amendments, particularly on the basis that, in looking at the amendment, they actually respond to the Senate committee's inquiry on this bill, which recommended that the reach and intent of the bill be clarified. These items amend the proposed definition of 'responsible franchisor entity' in subsection 558A(2) of the bill to clarify that the new franchisor responsibilities only apply to an entity that has a significant degree of influence or control over the franchisee entity's affairs and that the influence or control has a material impact on the franchisee entity's compliance or ability to comply with their obligation to pay workers appropriately.</p><p>What the amendment actually does is not only respond to what the committee report has actually asked the Senate to respond to—so clarifying the reach and intent of the bill—but also seek to explicitly clarify, as I said, that franchisors may be liable under the bill where the significant influence or control they exercise over their franchisees has a material impact on the franchisee entity's compliance or ability to comply with their obligation to pay workers appropriately. The amendments also ensure that the assessment of what could reasonably be known by a franchisor about their franchisees is determined in the context of the ordinary course of business. Again, as I said, this actually does respond to an issue that the Senate committee report itself actually asked the Senate to address, so I thank Senators Leyonhjelm and Bernardi for proposing the amendment, and the government will be supporting it.</p> <p class="speaker">Doug Cameron</p><p>Surprise, surprise—Senator Cash has capitulated to Bruce Billson. He was a former cabinet minister who, while on the government payroll and still a member of parliament, was accepting a payment from the Franchise Council. This is absolutely ridiculous. This just demonstrates that Bruce Billson was in there ensuring that this government does not look after workers that are in a vulnerable position. This makes it more difficult for workers who are being exploited to actually get some fairness within the system. This is a government that is prepared to amend its own legislation because a former cabinet minister who was on the payroll of the Franchise Council while they were still a member of parliament gets his way. This is not something that should be supported in here. This continues this government's lack of concern for exploited workers in this country. This continues a process that this government is happy to capitulate to. That means that, if you are a poor, vulnerable worker, you can be exploited in this country.</p><p>This does not deal with the issues of 7-Eleven. Surely, Minister Cash, you are aware of what happened to workers under that 7-Eleven process. You then came and developed amendments to the act to deal with this, yet, when your former cabinet minister knocked on your door and knocked on the doors of Senator Leyonhjelm and Senator Bernardi, what happened? They just capitulated. Here we are, the far Right of politics in this country, lining up with the far Right in the coalition to knock workers' rights off. That's what this is about. It's hear no evil, see no evil—just let everything happen to workers at 7-Eleven and Caltex. Franchisors have no responsibility for trying to ensure that workers get a fair go in this country. We know that we will never get a fair go under the coalition. But, every now and again, I would have thought that Senator Bernardi might have had some little comprehension or understanding of the rip-offs that take place. Senator Leyonhjelm probably wouldn't. But, Senator Bernardi, maybe you should have some understanding. This is about workers getting ripped off by some of the most powerful companies in this country. Again, I suppose it was not a problem when the former owner of 7-Eleven was a high-ranking Liberal apparatchik.</p><p>This is about the government. This is about Senator Cash. This is about the coalition using Senator Bernardi and Senator Leyonhjelm as stalking horses to try to get changes to their own legislation after big business and the Franchise Council have said to the government, 'We don't like it.' Bruce Billson comes in, knocks on the door, and workers are put at the bottom of the pack. This is unacceptable. This is just another example of a government that doesn't care about what happens to poor and vulnerable workers in this country. We will not be supporting this amendment. Anyone who has any comprehension of the problems that vulnerable workers are facing in this country would not support this. We think this is a complete capitulation by the minister and by the coalition to a former cabinet minister who was taking money from the Franchise Council while he was still in government. This is a problem for vulnerable workers in this country and it should be opposed.</p> <p class="speaker">Cory Bernardi</p><p>I feel I should respond to Senator Cameron, if only briefly, to say I am concerned about vulnerable workers in this country, but I do think it is incumbent upon us to remind the Senate and the Australian people that those who have traded away workers' entitlements to the detriment of the workers themselves have basically been the union bosses. The union bosses have engorged themselves and their organisations at the expense of some of our lower paid workers. They've traded away concession penalty rates on Sunday and award rates to big business. I find it galling that Senator Cameron dares to stand up in this place saying how he's the champion of vulnerable workers when his comrades on the other side of the chamber have been so diligent in selling out regular workers to big business. We have seen the Leader of the Opposition, Mr Bill Shorten, receive campaign funds from a union, his own union, that traded away workers' entitlements.</p><p>Ultimately, this is a cosy stitch-up between big business and the union movement. I am not interested in furthering a cosy stitch-up. I'm interested in independent enterprise. I'm interested in fostering free enterprise in this country and allowing people to have jobs and businesses to actually make money. I make no bones about that. I think a successful business should be able to make some money and provide for its employees. It will further investment in this country.</p><p>I have grave reservations about this bill, but I am trying to uphold, with Senator Leyonhjelm, the principle that, should this bill be successful, independent businesses are independent businesses. A franchise shouldn't just be an extension of the franchisor. It should be an independent business in its own right. Those on the other side of the chamber want to see them dealt with as big businesses so that their workforces can come under the spell of having their entitlements traded away to the benefit of the unions themselves. These are the real issues at work here. I don't believe that more regulation is necessary. I think, in actual fact, what we should be doing is taking away the burdens and the impediments to people being productive and to being successful in business in this country. That means we need to deregulate. It means we have to get the unions away from deregulating or from trading away workers' entitlements. We need to get government out of the system. We can fuel prosperity across this whole country should we go down that path. So, we are trying to improve what I think is a deeply flawed piece of legislation. It is built around the principle that independent businesses should be able to run independently under the rule of law rather than under the yoke of the union movement or under the yoke of oppressive government.</p> <p class="speaker">Doug Cameron</p><p>That is typical of Senator Bernardi—immediately saying this is all the problem of the union movement. Senator Bernardi, let me tell you: there was no union involvement with 7-Eleven. This was a former high-ranking Liberal office holder, who was one of the richest men in this country, ripping off workers day in, day out.</p> <p class="speaker">Cory Bernardi</p><p>Just like Bill Shorten did.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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