Last month I set Senator David Pocock a difficult challenge: to admit error in passing parts of the industrial relations legislation and then go on and rectify his mistake.
To his great credit, Pocock has taken the first step to take up that challenge, and the nation must hope he does not buckle in taking the next step.
In next week’s parliamentary debates Pocock and Senator Jacqui Lambie will need incredible strength and resolve. But if they keep their nerve they could emerge as national heroes among the family business community that employs 40 per cent of the workforce.
The background is important.
The Albanese government structured union agendas into its so called “loopholes” industrial relations legislation, masking a vicious attack on Australia’s family business sector.
Pocock campaigned in the last election on the basis of backing small enterprises, so the family business commodity had high hopes he would honour his vows.
Last year, the Albanese family business attack Bill passed the House of Representatives but in the Senate the independents led by Pocock and Lambie moved to have a senate inquiry. It was good policy.
But in a dramatic about-face, before the inquiry could start, Pocock and Lambie allowed a section of the family business attack to be passed in the Senate as separate legislation, covering retrenchment pay and allowing a union delegate with wide powers to be appointed to every single family business down to a one-employee operation.
As you would expect, I held Pocock and Lambie to account for this action. I had legal advice that said that most family businesses employing less than 15 people would need to pay retrenchment benefits. The advice was wrong. The complex legislation actually states retrenchment benefits must be paid by enterprises with less than 15 employees but then elsewhere in the legislation a series of clauses eliminated most enterprises from that liability. Pocock pointed out that I was wrong. I took a second legal opinion, discovered he was right and admitted error. But then I challenged him do likewise and admit he erred in passing the union delegate act giving the delegates wide powers over family business.
Pocock has now taken a welcome first step in accepting the challenge, and proposes that the original legislation he supported be amended and the powers of union delegates be limited. A second step is required.
Unions in small family businesses have far greater resources than the entrepreneur, creating a huge power imbalance. I make two suggestions. First, if the matter goes to Fair Work then Fair Work must pay total family legal costs. Unaffordable legal costs mean that, irrespective of the rules, family business cannot fight powerful unions.
Secondly, the unfair contracts act was passed by the Albanese government because of the power difference between small enterprises and large enterprises.The principles in the unfair contracts legislation require fair treatment for both parties, and should be enshrined in union delegate powers.David, I implore you don’t be rushed. Get this right.
Pocock and Lambie also are proposing amendments to the remaining segments of the Bill that have yet to pass the parliament. I have written extensively on three areas: casual workers, the gig economy and stripping the ACCC of powers (on the pretext of road safety) so large unions and large road transport companies can form a cartel to raise prices and put small truckies out of business.
1. Casual workers. As long as the award conditions are adhered to, make it easy for the employee to be a casual if that is what they want. The government wants to eliminate casual employment via a huge number of complex rules with heavy breach fines.
No family business can take the risk of breaching the complex rules so, effectively, casual employment is to be eliminated. All that is required is to take out the complex definitions of casual employment and use the award. The ACTU wants the ability for a casual worker to go permanent part-time after six months. This is good policy
In this arrangement the casual worker must have a clear non-forced option and understands that while there will be better job security in changing there is a 25 per cent reduction in take-home pay. Few will take the option.
2. The gig economy. The Albanese plan to eliminate most sections of the gig economy is similar to the attack on casuals. Complex rules are set out that would make running the gig economy too costly. This would hit large areas of the community who want gig jobs to supplement base income. Thanks to the current government, pensioners can earn more money without impacting their pension. They are big users of the gig economy and would be hit hard.
Paradoxically, the answers to the problem of making the gig economy work fairly but efficiently come from the ALP community itself. The ALP in its unfair contracts legislation set clear rules for agreements where one party is much more powerful. Accordingly, the industrial relations legislation needs to make it clear that gig transactions are governed by the unfair contract rules.
If the government thinks that’s insufficient then once again other parts of the ALP community have the answer. The Victorian government has set out six standards for the operations of the gig economy.
First, platforms should provide a consultation process, to allow discussions with “non employee on-demand workers” and their representatives on work related matters. Second, “non employee on-demand workers” must have powers that match the owner of the platform; third, fair conditions and pay; fourth, fair and transparent independent dispute resolution; fifth, “non employee on-demand workers” have the ability to seek better work arrangements; and finally and most importantly safety standards.
3. ACCC and road transport safety. If this was really about safety the ACCC would not be required have important powers removed. The real aim is to enable money to pass from road transport companies to unions in exchange for higher prices. It was tried by a previous ALP government and Lambie knocked it out. Hopefully she will do it again.
I would love nothing better then to heap praise on Pocock and Lambie for neutralising the anti-family business sections of the legislation.
More Coverage
Billionaire battle: ‘Pratt abdicated responsibility’
Billionaire Alex Waislitz says his ex-wife failed to involve herself in the affairs of their family business, and called a court case she lodged against him ‘embarrassing’.
Property chiefs see costs burden easing
Leading property bosses say pricing pressures that have driven hundreds of construction firms out of business are stabilising, but energy and labour costs remain a concern.