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senate vote 2020-11-10#2
Edited by
mackay staff
on
2023-01-27 09:52:36
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Title
Bills — Economic Recovery Package (Jobmaker Hiring Credit) Amendment Bill 2020; in Committee- Economic Recovery Package (Jobmaker Hiring Credit) Amendment Bill 2020 - in Committee - Underpayment
Description
<p class="speaker">Mehreen Faruqi</p><p>by leave—I move Greens amendments (1) and (2) on sheet 1064 together:</p>-
- The majority voted against [amendments (1) and (2)](https://www.openaustralia.org.au/senate/?gid=2020-11-10.16.1) introduced by NSW Senator [Mehreen Faruqi](https://theyvoteforyou.org.au/people/senate/nsw/mehreen_faruqi) (Greens), which means it failed.
- ### What do the amendments do?
- Senator Faruqi [explained that](https://www.openaustralia.org.au/senate/?gid=2020-11-10.16.1):
- > *Over the years there have been plenty of examples of businesses that have denied workers their full pay and their full rights. Many big businesses eligible for the JobMaker hiring credit actually have a history of underpaying their staff and their workers, but this scheme, as it stands at the moment, allows public funds to subsidise those same businesses that have been underpaying their staff. Surely no-one in this place can agree that that should be allowed to happen. Our amendments remove eligibility for businesses that are found to be underpaying their workers while receiving the JobMaker hiring credit. Businesses will be required to repay the total sum of the credit they have received. Our amendments also include protections to prevent employers seeking payments from their workers to cover that repayment.*
- ### Amendment text
- > *(1) Schedule 1, page 3 (after line 11) , after item 2, insert:*
- >
- >> *2A Section 6*
- >>
- >> *Insert:*
- >>
- >>> *underpaying in relation to an employee: see subsection 7A(4).*
- >>>
- >>> *underpayment event: see subsection 7A(3).*
- >
- > *(2) Schedule 1, page 3 (after line 26), after item 4, insert:*
- >
- >> *4A After section 7*
- >>
- >> *Insert:*
- >>
- >>> *7A Requirements for rules that provide for jobmaker hiring credit scheme — ineligibility for underpaying employees*
- >>>
- >>> *(1) This section applies if rules are made for the purposes of subsection 7(1A) that provide for a kind of payment known as the jobmaker hiring credit.*
- >>>
- >>> *Ineligibility for underpaying employees*
- >>>
- >>> *(2) The rules must provide that an entity is not eligible for the payment if, during the relevant period, an underpayment event occurs in relation to:*
- >>>
- >>>> *(a) the entity; or*
- >>>>
- >>>> *(b) an associated entity (within the meaning of the Corporations Act 2001) of the entity.*
- >>>
- >>> *(3) There is an underpayment event in relation to an entity if any of the following apply in relation to the entity:*
- >>>
- >>>> *(a) a court or the Fair Work Commission makes an order requiring the entity to make payments to one or more of the entity's employees in connection with underpaying the employees;*
- >>>>
- >>>> *(b) the Fair Work Ombudsman accepts an enforceable undertaking from the entity under section 715 of the Fair Work Act 2009 in relation to a contravention involving underpaying employees;*
- >>>>
- >>>> *(c) the entity is given a compliance notice under section 716 of the Fair Work Act 2009 in relation to a contravention involving underpaying employees;*
- >>>>
- >>>> *(d) the Commissioner reasonably believes that the entity is, or has been, underpaying employees.*
- >>>
- >>> *(4) For the purposes of this section, underpaying an employee means failing to pay the employee the amount or amounts the employee is entitled to be paid as such an employee (whether as salary, wages or other allowances or entitlements, and whether under a relevant award, agreement or other instrument or any other law).*
- >>>
- >>> *Prohibition on demanding payments from employees if employer is ineligible*
- >>>
- >>> *(5) The rules must also provide that, if:*
- >>>
- >>>> *(a) an entity is determined to not be eligible for the payment under rules made for the purposes of subsection (2) because of an underpayment event; and*
- >>>>
- >>>> *(b) as a result the entity is liable to repay amounts to the Commonwealth;*
- >>>>
- >>>> *the entity, or an associated entity (within the meaning of the Corporations Act 2001) of the entity, are prohibited from both of the following:*
- >>>>
- >>>> *(c) requesting or demanding payment of an amount from an employee to cover some or all of the repayments for which the entity is liable;*
- >>>>
- >>>> *(d) withholding from amounts the entity or associated entity is liable to pay an employee an amount to cover some or all of the repayments for which the entity is liable.*
- >>>
- >>> *(6) An entity commits an offence of strict liability if:*
- >>>
- >>>> *(a) the entity is subject to a prohibition under rules made for the purposes of subsection (5); and*
- >>>>
- >>>> *(b) the entity fails to comply with the prohibition.*
- >>
- >> *Penalty: 60 penalty units.*
<p class="italic">(1) Schedule 1, page 3 (after line 11) , after item 2, insert:</p><p class="italic">2A Section 6</p><p class="italic">Insert:</p><p class="italic"><i>underpaying</i> in relation to an employee: see subsection 7A(4).</p><p class="italic"><i>underpayment event</i>: see subsection 7A(3).</p><p class="italic">(2) Schedule 1, page 3 (after line 26), after item 4, insert:</p><p class="italic">4A After section 7</p><p class="italic">Insert:</p><p class="italic">7A Requirements for rules that provide for jobmaker hiring credit scheme — ineligibility for underpaying employees</p><p class="italic">(1) This section applies if rules are made for the purposes of subsection 7(1A) that provide for a kind of payment known as the jobmaker hiring credit.</p><p class="italic"> <i>Ineligibility for underpaying employees</i></p><p class="italic">(2) The rules must provide that an entity is not eligible for the payment if, during the relevant period, an underpayment event occurs in relation to:</p><p class="italic">(a) the entity; or</p><p class="italic">(b) an associated entity (within the meaning of the <i>Corporations Act 2001</i>) of the entity.</p><p class="italic">(3) There is an <i>underpayment event</i> in relation to an entity if any of the following apply in relation to the entity:</p><p class="italic">(a) a court or the Fair Work Commission makes an order requiring the entity to make payments to one or more of the entity's employees in connection with underpaying the employees;</p><p class="italic">(b) the Fair Work Ombudsman accepts an enforceable undertaking from the entity under section 715 of the <i>Fair Work Act 2009</i> in relation to a contravention involving underpaying employees;</p><p class="italic">(c) the entity is given a compliance notice under section 716 of the <i>Fair Work Act 2009</i> in relation to a contravention involving underpaying employees;</p><p class="italic">(d) the Commissioner reasonably believes that the entity is, or has been, underpaying employees.</p><p class="italic">(4) For the purposes of this section, <i>underpaying</i> an employee means failing to pay the employee the amount or amounts the employee is entitled to be paid as such an employee (whether as salary, wages or other allowances or entitlements, and whether under a relevant award, agreement or other instrument or any other law).</p><p class="italic"> <i>Prohibition on demanding payments from employees if employer is ineligible</i></p><p class="italic">(5) The rules must also provide that, if:</p><p class="italic">(a) an entity is determined to not be eligible for the payment under rules made for the purposes of subsection (2) because of an underpayment event; and</p><p class="italic">(b) as a result the entity is liable to repay amounts to the Commonwealth;</p><p class="italic">the entity, or an associated entity (within the meaning of the <i>Corporations Act 2001</i>) of the entity, are prohibited from both of the following:</p><p class="italic">(c) requesting or demanding payment of an amount from an employee to cover some or all of the repayments for which the entity is liable;</p><p class="italic">(d) withholding from amounts the entity or associated entity is liable to pay an employee an amount to cover some or all of the repayments for which the entity is liable.</p><p class="italic">(6) An entity commits an offence of strict liability if:</p><p class="italic">(a) the entity is subject to a prohibition under rules made for the purposes of subsection (5); and</p><p class="italic">(b) the entity fails to comply with the prohibition.</p><p class="italic">Penalty: 60 penalty units.</p><p>Over the years there have been plenty of examples of businesses that have denied workers their full pay and their full rights. Many big businesses eligible for the JobMaker hiring credit actually have a history of underpaying their staff and their workers, but this scheme, as it stands at the moment, allows public funds to subsidise those same businesses that have been underpaying their staff. Surely no-one in this place can agree that that should be allowed to happen. Our amendments remove eligibility for businesses that are found to be underpaying their workers while receiving the JobMaker hiring credit. Businesses will be required to repay the total sum of the credit they have received. Our amendments also include protections to prevent employers seeking payments from their workers to cover that repayment. I commend the amendments to the Senate.</p> <p class="speaker">Louise Pratt</p><p>We shouldn't be subsidising with a hiring credit employers who have been found to have underpaid workers. They should be ineligible for this scheme, something these amendments seek to implement. We very much support these amendments. We think that they should be prospectively linked to the operation of the hiring credit scheme, whereby employers that have been found to have underpaid workers are excluded. I very much hope the government understands the serious public concern around this issue and the concerns of everyone who is supporting these amendments.</p><p>Essentially, I call on the government to support these amendments in scrutinising this legislation—and I know we've had different positions on the various questions in the amendments—and I particularly call on One Nation to say, 'Let's make a very clear decision that employers who underpay their workers should not receive public funds that subsidise the wages of those workers.' Firms that underpay should not be eligible. Therefore, we support these amendments.</p><p>Labor have already indicated that we support this legislation passing the House and the Senate. Senator Patrick said, 'Well, show some spine and stand against the legislation as a whole in order to get some more leverage.' I'm sorry, but that is not how this works. It would be a shame to see One Nation, who oppose this legislation, vote against these amendments. I'd really like to see their attendance in the chamber, so that this legislation that we know will pass this place can be meaningfully amended.</p> <p class="speaker">Simon Birmingham</p><p>I thank the Senate. The government fully understands the intent behind this legislation. There is indeed no excuse for the underpayment of workers and we have in place extensive legislative frameworks to take action against employers who underpay workers, including the Fair Work Act for unpaid wages and the Superannuation Guarantee (Administration) Act for unpaid superannuation.</p><p>The Fair Work Ombudsman provides active support and assistance to employers and employees with respect to workplace issues that include underpayment of wages. The Fair Work Ombudsman is continuing to take strong action on behalf of workers, with the agency recovering a record amount of money—some $123 million—for underpaid workers in 2019-20. The government has taken unprecedented action to date to protect vulnerable workers, including by providing more powers and additional resources to the Fair Work Ombudsman and increasing up to tenfold the penalties for lawbreaking employers. The government has committed more than $110 million in new funding to the Fair Work Ombudsman in recent years to complement and drive those increases in penalties and enforcement, and to ensure that employees receive the entitlements to which they are entitled.</p><p>However, these amendments would complicate the administration of the JobMaker hiring credit and would also potentially deprive some young Australians of the opportunity to get into new jobs. We have laws to deal with the underpayment of workers by excising businesses from eligibility under this hiring credit. We potentially then narrow the scope of those who may be growing employment, who may be creating new jobs and who, therefore, may be providing that pathway out of unemployment for young Australians. For those reasons, the government opposes these amendments.</p><p class="italic">The CHAIR: The question is that amendments (1) and (2) on sheet 1064, moved together by leave by Senator Faruqi, be agreed to.</p> -
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