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representatives vote 2022-11-10#6
Edited by
mackay staff
on
2022-11-16 15:46:33
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Title
Bills — Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022; Consideration in Detail- Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 - Consideration in Detail - Definition of small business
Description
<p class="speaker">Andrew Wilkie</p><p>I move amendments (1) to (8) as circulated in my name together:</p>-
- The majority voted in favour of *disagreeing* with [amendments](https://www.openaustralia.org.au/debate/?id=2022-11-10.26.1) introduced by Mayo MP [Rebekha Sharkie](https://theyvoteforyou.org.au/people/representatives/mayo/rebekha_sharkie) (Centre Alliance), which means they failed.
- ### What does this amendment do?
- Ms Sharkie [explained that](https://www.openaustralia.org.au/debate/?id=2022-11-10.26.1):
- > *The purpose of this amendment is to amend section 23 of the Fair Work Act with the effect of changing the definition of a small business. Currently, section 23 defines a small business as a business comprising of 15 employees or less. Casuals are not included in this count unless there is a systematic or regular nature to their employment. For most businesses this would mean most, if not all, of their casual the employees would be included in the employee count for the purposes of defining a small business.*
- >
- > *My amendment seeks to change the number of employees that define a small business from 15 to 100. The rationale for this change is simple. Businesses with fewer than 100 staff do not have the human resources departments, they do not have the pay roster, they simply do not have capacity to expend resources—financial and human—to negotiate enterprise bargaining agreements that this bill will potentially force upon them. Without this change we are relegating the thousands of mum-and-dad businesses and entrepreneurial enterprises to an immediate future of costly union-led negotiations. These businesses, many of which are still trying to recover from COVID-19, cannot afford the time or the financial resources.*
- ### Amendment text
- > *That the following words be added after the words 90 days: ."; and*
- >
- > *(1) parts 1, 2 and 3 of the bill are added to the inquiry; and*
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- > *(2) calls on the Government to change the definition of a small business from 15 to 100 employees".*
<p class="italic">(1) Schedule 1, item 426, page 113 (lines 12 and 13), omit the definition of <i>intersex status</i>.</p><p class="italic">(2) Schedule 1, item 426, page 113 (before line 14), before the definition of <i>special measure to achieve equality</i>, insert:</p><p class="italic"><i>sex characteristics</i> means a person's physical features and development relating to sex, and includes:</p><p class="italic">(a) the person's genitalia and other sexual and reproductive parts of the person's anatomy; and</p><p class="italic">(b) the person's chromosomes and genes; and</p><p class="italic">(c) the person's hormones and secondary physical features emerging as a result of puberty.</p><p class="italic">(3) Schedule 1, item 427, page 113 (line 17), omit "intersex status,", substitute "sex characteristics,".</p><p class="italic">(4) Schedule 1, item 429, page 114 (line 3), omit "intersex status,", substitute "sex characteristics,".</p><p class="italic">(5) Schedule 1, item 432, page 115 (line 3), omit "intersex status,", substitute "sex characteristics,".</p><p class="italic">(6) Schedule 1, item 433, page 115 (line 6), omit "intersex status,", substitute "sex characteristics,".</p><p class="italic">(7) Schedule 1, item 436, page 115 (line 23), omit "intersex status,", substitute "sex characteristics,".</p><p class="italic">(8) Schedule 1, item 437, page 116 (line 23), omit "intersex status", substitute "sex characteristics".</p><p>These amendments quite simply replace the words 'intersex status' with 'sex characteristics' in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. They have been drafted in consultation with the peak organisation representing intersex people, that's the Intersex Human Rights Australia organisation, and LGBTQI+ advocates Rodney Croome AM and Alistair Lawrie. The terminology is also endorsed by the intersex community through the Darlington Statement and the 'Yogyakarta Principles plus 10.' This is a very important amendment because not everyone who has variations of their sex characteristics may identify as intersex. But they still deserve protection from discrimination, not least because the experiences of people with variations of sex characteristics can be harrowing.</p><p>Indeed, according to Intersex Human Rights Australia, a 2015 Australian survey of 272 people born with atypical sex characteristics found many individual and systemic examples of discrimination. For example: '19 per cent of people born with atypical sex characteristics fail to complete secondary school, due to reasons including the impact of medical interventions during puberty, stigmatisation and bullying on grounds of sex characteristics and unaddressed issues associated with developmental delays.'</p><p>Good discrimination law focuses on people's attributes rather than just lumping people into one group. For example, our antidiscrimination laws protect people of all sexual orientations not just people who identify as gay. In the same way, this amendment would protect all people with variations of their sex characteristics not just people who identify as intersex. Very relevant is that other Australian jurisdictions already recognise this matter and have acted on it, with Victoria, the ACT and Tasmania now using the term 'sex characteristics'. The Northern Territory has also adopted the wording in its Anti-Discrimination Amendment Bill 2022 currently before the Northern Territory parliament. Furthermore, the Law Reform Commission of Western Australia and Queensland Human Rights Commission have recommended 'sex characteristics' as the preferred term.</p><p>I acknowledge that supporting this amendment could be regarded as problematic by the government because the federal Sex Discrimination Act has included the term 'intersex status' since 2013. I also acknowledge that during debate on a Greens' amendment to the Sex Discrimination and Fair Work (Respect at Work) Amendment Bill 2021, that would have replaced the words 'intersex status' with 'sex characteristics', Labor indicated it would not support the amendment because it would cause inconsistency with other legislation such as the Sex Discrimination Act. But two wrongs don't make a right. So the government should either support this amendment and then move quickly to also amend the Sex Discrimination Act and any other relevant antidiscrimination legislation or, at least, make a rock-solid commitment today to soon amend both the secure jobs, better pay bill and the Sex Discrimination Act and any other relevant antidiscrimination legislation.</p><p>The substance of this straightforward amendment is inherently important and very meaningful to many people. It's been advocated for many years, certainly as far back as the creation of the Sex Discrimination Act in 2013. So, please, I say to the government: let's do this and do it today.</p> <p class="speaker">Stephen Bates</p><p>I'd like to speak specifically to this bill's inclusion of protection from discrimination on the basis of gender identity in the Fair Work Act. I'd like to commend the government for taking these critical steps to protect groups who experience severe levels of workplace discrimination, and I want to thank the member for Clark for moving this amendment to ensure that best-practice language for the intersex community is used in this bill, as the Greens have recommended for years.</p><p>Studies have shown that only 22 per cent of gender diverse people feel comfortable to be open about their gender identity with their colleagues. Just over 43 per cent reported being deliberately misgendered within the workplace in the last year, and this bill would go some of the way to ensuring gender diverse people feel safer in the workplace, allowing them to feel more comfortable and secure in themselves.</p><p>Protection on the basis of gender identity is a welcomed commitment from the government. Although I welcome their intention in taking steps to protect the intersex community, protection on the basis of intersex status does not go far enough. For intersex people to be fully protected from discrimination, we must protect them against discrimination on the basis of sex characteristics. This is best-practice language and it protects intersex people at all stages of development and widens the scope of protection for intersex people. It's language that Intersex Human Rights Australia has called on the government to implement. Further, it's language recommend by the Queensland Human Rights Commission and the Law Reform Commission of Western Australia to best protect intersex people.</p><p>All members of the LGBTQIA+ community deserve to feel safe and protected in their workplaces, including gender diverse and intersex people. I call on the government to update all antidiscrimination legislation to adequately protect intersex people.</p> <p class="speaker">Tony Burke</p><p>BURKE (—) (): My response to this amendment is probably quite different to how I've responded to any of the other amendments in that this amendment is actually seeking to do something that I originally requested during the drafting stage of this bill. The explanation that the member for Clark gave of the process and the interaction with the Sex Discrimination Act was a problem that I was presented with, and the reason why we can't support the amendment in this form.</p><p>In the first instance, I want to make clear: the government makes no argument of principle in any way against any of the two contributions that were just made by the member for Clark and the member for Brisbane. In the second instance, the intention to get best-practice language here so that people are properly covered is a commitment that is shared by those who've spoken with the government.</p><p>Before I knew this amendment was coming—this was during the drafting stages—as soon as I hit this problem of the interaction with the Sex Discrimination Act I raised the issue personally with the Attorney-General, because it was the Attorney-General's Department that had raised it with my department. The intention was made clear to me then, by the Attorney-General, that the government does intend to bring in legislation that will deal with this issue across all relevant legislation at once. Being able to do that avoids any problems with the different parts of legislation not interacting properly.</p><p>It's a strange one in terms of saying that we won't support the amendment but it's on the basis that we accept completely the arguments that have been put, and want to be able to bring forward government legislation that addresses it consistently across all relevant acts.</p> <p class="speaker">Milton Dick</p><p>The question is the amendments moved by the member for Clark be disagreed to.</p><p>Question agreed to, Mrs Archer and Mr Wilkie dissenting.</p> <p class="speaker">Rebekha Sharkie</p><p>I move amendments (1) and (2) together:</p><p class="italic">That the following words be added after the words 90 days:   ."; and</p><p class="italic">(1)parts 1, 2 and 3 of the bill are added to the inquiry; and</p><p class="italic">(2)calls on the Government to change the definition of a small business from 15 to 100 employees".</p><p>The purpose of this amendment is to amend section 23 of the Fair Work Act with the effect of changing the definition of a small business. Currently, section 23 defines a small business as a business comprising of 15 employees or less. Casuals are not included in this count unless there is a systematic or regular nature to their employment. For most businesses this would mean most, if not all, of their casual the employees would be included in the employee count for the purposes of defining a small business.</p><p>My amendment seeks to change the number of employees that define a small business from 15 to 100. The rationale for this change is simple. Businesses with fewer than 100 staff do not have the human resources departments, they do not have the pay roster, they simply do not have capacity to expend resources—financial and human—to negotiate enterprise bargaining agreements that this bill will potentially force upon them. Without this change we are relegating the thousands of mum-and-dad businesses and entrepreneurial enterprises to an immediate future of costly union-led negotiations. These businesses, many of which are still trying to recover from COVID-19, cannot afford the time or the financial resources.</p><p>What we're looking at here is staff with a threshold of 15. Now, let me tell you: right across Australia, this is going to capture fruit-and-vegetable stores; this is going to capture independent service stations; this is going to capture independent and small supermarkets, IGAs. This bill is, I think, unwittingly pitting mum-and-dad operators against unions.</p><p>Let me tell you what small businesses are doing on their Saturday night. They don't have HR departments. They are doing the payroll themselves on a Saturday night or a Sunday. They simply cannot afford this.</p><p>What's going to happen to those businesses that have 15 or 16 staff, or perhaps even up to 20, is they're going to contract their staffing numbers to make sure that they have fewer than 15. That's going to mean job losses for those 15-year-olds and 16-year-olds that are working at the fruit and veg store every Sunday because on Saturday they're playing sport. This bill is really concerning, so I'm trying to remedy it in some way to take small business out of it. This government is setting up small business for a David and Goliath battle, where David is the small business and Goliath is the unions. I'm afraid that in this contest David will not be the victor.</p> <p class="speaker">Tony Burke</p><p>I want to thank the member for Mayo for bringing this issue forward. A number of members of the crossbench here and in the other place have been raising different ways of dealing with the small business exemption. Some have raised it through a shift from headcount to full-time equivalents. Some have raised it as a change in the numbers. I'll be up-front here: the government's preference is to keep it at a headcount of 15, which is where we've got it. I respect that, in the passage of both houses, there'll be different negotiations that'll happen on that. I appreciate that, particularly for a number of the crossbenchers, a shift on this area is an absolutely critical issue, and that's been conveyed to me. I also acknowledge that, for a large number, there are other issues in the bill that they passionately support. But this is something where they need to stand up for their electorates. I simply want to acknowledge that but make clear that the government will be opposing the amendments that seek to change where the small business exemption is, with an understanding that the debate on this will probably continue as it goes through the other place.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>-
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