ACT Independent Senator David Pocock has confirmed he will support passage of the Closing Loopholes No. 2 Bill after agreeing a long list of amendments with the government.
Senator Pocock has negotiated the government’s agreement to significant amendments on key issues ranging from casuals, to regulation of the gig economy to the Greens’ proposal for a right to disconnect.
He will move amendments co-sponsored with Senator Lambie on the bill, which is expected to come to a vote tomorrow.
“This is a huge bill which is why Senator Lambie and I pushed for the Government to split the original bill last year,” Senator Pocock said.
“The changes the crossbench has negotiated make it a much simpler, fairer bill that preserves choice and flexibility.
“If you want to remain a casual you can, but if you want to convert to permanent there is now a better process for doing so while still preserving a businesses right to refuse on fair and reasonable grounds.
“As a result of our changes, existing independent contractors can now elect to keep their arrangement unchanged.
“Gig workers will have the benefit of new minimum standards but there will also be guardrails in place so that platforms can continue to operate and innovate with a fairer way of testing who is employee-like and who isn’t.
“And we’ve also landed on some important changes to the original right to disconnect proposal that makes it more workable. Rather than an outright prohibition on employers contacting their employees, workers now have a right not to monitor or respond to unreasonable contact outside of work hours where they aren’t compensated for this.
“Small businesses will have extra time to adapt to this new right to disconnect and have access to new guidelines and additional resources provided through the Fair Work Ombudsman.There are also now safeguards against frivolous and vexatious claims.
“Small businesses will also be carved out of the civil penalties provisions and the government is open to a review the definitions of small business across Commonwealth legislation, to consider their appropriateness.
“The Government has committed to exclude Livestock transport altogether from the new road transport provisions.
“Importantly for people in Canberra, changes will also be made to both the Fair Work Act and Public Service Directions to make it easier for casuals in the APS to convert to permanent.
“These changes strike the right balance and resolve a huge number of concerns stakeholders have raised.
“I’d like to thank Minister Burke and his team for their constructive and positive engagement as we have worked through these changes over many months.”
A summary of the amendments is below:
- Delay commencement of the casuals provisions until six months after Royal Assent to give stakeholders time to prepare for the new arrangements.
- Make sure the employment contract can still be considered by the FWC in determining whether an employee is casual or not
- Ensure that a single indicia should not establish a firm advance commitment to continuing and indefinite work.
- Clarify that an employer may be able to offer or refuse to offer work to a casual employee.
- Broaden the capacity for employees to enter into fixed term contracts as casual employees. The amendment would ensure all other employees may be engaged on fixed term contracts as casual; except for academics covered by certain modern awards in the higher education sector. This largely resolves concerns raised by on-hire companies offering temp contracts.
- Repeal the existing requirement on businesses to offer conversion, which would provide for a single legislated pathway for casual conversion (i.e. the employee choice pathway). This will relieve the existing administrative burden on employers and make the process by which an employee can seek to convert to permanency simpler.
- Make it simpler for business, especially small business, to refuse casual conversion by removing the requirement to provide a ‘detailed’ statement of reasons
- Allow employers to refuse an employee request for conversion on “fair and reasonable operational grounds”
- Lower the barriers to casual employees in the APS converting to permanent and enabling them to apply to the FWC to deal with disputes about casual conversion.
- Limit the FWC to considering only the class or classes of regulated businesses to be covered by proposed minimum standards orders or guidelines, rather than naming individual businesses.
- Increase from one to two (out of three) the number of criteria someone needs to mee to be defined as employee-like
Right of entry (exemption certificates)
- Insert an additional guardrail such that the Fair Work Commission, prior to issuing a certificate, must be satisfied that advance notice of entry into a workplace would hinder an effective investigation into suspected underpayments.
Right to disconnect
- Remove the prohibition on employers contacting employees outside of their work hours unless that contact (or attempted contact) is reasonable. Give employees the right to refuse to monitor, read or respond to contact outside work hours from their employer or a third party, if that contact is work-related and unless that refusal is unreasonable. Delay commencement for small businesses and their employees until 18 months after Royal Assent.
- Additional funding for FWO to support business to understand this new right to disconnect
- Require the FWC to issue guidelines about the operation of the Right to Disconnect before it commences.
- Empower the FWC to dismiss a right to disconnect application for a ‘stop order’ on the ground that the application is frivolous or vexatious; and require the FWC to deal with the matter within 14 days.
- Enable peak councils, defined as a national or state council federation that is effectively representative of a significant number of organisations representing regulated businesses and regulated workers, to make applications to vary or revoke minimum standards orders.
- Provide that minimum standards orders can only include a term to the extent necessary to achieve the minimum standards objective
- Require a review of the operation of the amendments made by the Bill within 2 years of Royal Assent, including but not limited to the new jurisdictions relating to regulated workers and the right to disconnect.