"The Government's IR Omnibus Bill is essential for employment, investment and businesses confidence, at this critical time. The JobKeeper scheme is about to end and businesses will be making important decisions over the next couple of weeks about whether to retain staff. Indeed, Ai Group's member advice line this week has seen a significant jump in businesses calling about potential redundancies as we approach the end of JobKeeper. The passage of the Bill this week is vital and its rejection would not come at a worse time," Innes Willox, Chief Executive of the national employer association Ai Group said today.
"This legislation – developed after months of negotiations between government, unions and employers – is our best way of continuing to put people into jobs, keep people in jobs and provide pathways for young Australians to find meaningful work.
"Unions participated – we all hoped and believed – in good faith during the discussions. Perhaps we were wrong. During the negotiations, representatives of small businesses and large employers, ceded significant ground to deliver a package that could work for all.
"A defeat of the Bill will crush confidence, devastate current and future employment, particularly impact small and family-owned Australian businesses and completely undercut our prospects of a quick recovery. Business owners – and those who work with them – will not forget those who campaigned against the interests of our national economic recovery, nor those who choose to vote against that recovery.
"The unions are running a misinformation campaign and endeavouring to pressure Crossbench Senators not to support the Bill, or pressuring them to demand unreasonable amendments that cannot be supported. They are attempting to intimidate Crossbenchers by putting their photographs in full-page newspaper advertisements and on posters. It is important that Crossbench Senators act in the national interest and not respond to these blatant attempts to intimidate them.
"Contrary to union claims:
"The definition of a 'casual employee' in the Bill is designed to provide certainty to businesses by ensuring that if an employee is engaged and paid as a casual and has the right to reject shifts, then they are a casual for the purposes of the Fair Work Act. This is obviously fair and sensible.
"The Bill provides fair protections against 'double dipping' claims. Employers are currently facing many billions of dollars in back-pay risks due to potential claims on behalf of employees who have been engaged and paid as casuals. Plaintiff law firms and litigation funders (many of which are overseas firms) are gearing up to pursue widespread claims against businesses. This issue is a major worry to businesses throughout the country and it is constantly being raised with Ai Group and other businesses representatives. This issue will drive many businesses – small and large – into insolvency unless the Bill is passed. Limiting the double-dipping provision in the Bill to future claims would not address the billions of dollars in back-pay risks that employers are currently facing.
"Giving the Fair Work Commission (FWC) the power to arbitrate over casual conversion requests is not necessary. Casual conversion provisions are included in most modern awards. The dispute settling clauses in awards give the FWC consent arbitration powers. This approach has not been a problem in practice. In the FWC's recent major Casual Employment Case, a five-member Full Bench of the Commission rejected the unions' arguments that the absence of compulsory arbitration in the casual conversion provisions in awards was preventing conversion occurring in appropriate circumstances. The Full Bench said: 'The evidence did not demonstrate that, for those who exercised the election to convert, the existing provisions in the awards in question were ineffective in leading to conversion actually occurring.'[1]
"Giving the FWC the power to arbitrate underpayment claims, other than by consent, would breach the separation of powers in the Australian Constitution as determined in the High Court's Boilermakers Case in 1956 (in which Ai Group's predecessor organisation was the respondent). In this case, the High Court held that the predecessor tribunal to the FWC could not exercise judicial powers because these powers can only be exercised by a relevant Court. The Commission does not have the power to order employers to make back-payments and it cannot impose penalties. The relevant provisions in the Constitution have not changed since 1956.
"Contrary to union misinformation, the Bill contains a series of modest, practical and fair amendments to the Fair Work Act that will boost jobs, investment and confidence. The Bill deserves the support of all Senators," Mr Willox said.
[1] [2017] FWCFB 3541; para [386].
