Screen Industry Workers Bill

Members, we come now to Part 2, which is the debate on clauses 13 to 20, “Workplace relationships and individual contracts”. The question is that Part 2 stand part.

Part 2 deals specifically with matters pertaining to individual contracts under the bill. It doesn’t deal with occupation or enterprise-based bargaining. It focuses purely on individual contracts and relationships between workers and engagers.

A couple of things that are worth noting here, in terms of changes that have been made since this was last in the House: the select committee, I think, has made a couple of useful changes. My understanding is that, from the select committee’s report, I think there was broad support for these, including expressed in the National Party minority view, in terms of just improving some of the baseline protections that will play out in individual contracts. The first is that engagers will be required to tell workers that they can seek individual advice before they engage in a contract, or be required to give those workers reasonable time to consider that advice before they confirm their intentions. And there will, secondly, be enhanced protection against terms that might prevent complaints being raised by the individual worker under those individual agreements.

I think probably the most noteworthy change that’s proposed in the ministerial Supplementary Order Paper is additional provisions in clause 17, which extends prohibitions on retaliatory actions to include the non-renewal of contracts, which is a relatively significant tool, which you can imagine in this sector—given that people are, by definition, contractors—could have a significant impact on people. So it’s just making it very clear that there can’t be retaliatory action, in response to complaints that have been made, through the non-renewal of contracts. So, again, effectively, the changes from both the select committee and the Supplementary Order Paper are about extending some of those basic protections for individuals who are engaging in contracting with an engager.

It’s actually to pick up on clause 17. I agree with the Minister: we do not want people being fired or having their contracts terminated because of that reason, but how does he perceive this working in reality, when, for example’s sake, a screen worker is doing a very poor job but just claims that they are being retaliated against? How does he perceive that’s going to work? Is this going to become an excuse, and how does he see that being moderated?

Ultimately, the provisions of the bill will give the worker some basis to go to if they believe that they have a grievance in this area. They will have to resolve that grievance through the dispute resolution processes that are set up in the bill. Often that could be through directly raising the concern with the employer, it could be seeking the assistance of mediation services, or more formal legal processes—so not dissimilar to the processes that we would expect to see playing out in other employment relationship issues. We can’t guarantee any outcome through the legislation that we provide, but we can set very clear standards which can then be tested legally based on the evidence that’s available.

Just following up on that, I mean, just how does somebody enter the mind of an engager, as it’s called here—it’s a film producer presumably or something like that who’s hired somebody. Clause 17(1), included in Supplementary Order Paper 234, says, “An engager must not terminate or refuse to renew a screen production worker’s contract if the decision to do so is motivated, wholly or partly, by the exercise or proposed exercise by the worker of any right”. And so somehow, somewhere along the way, when it comes to renewing a contract—which usually most people would regard as something that you have a right to do, or not—somehow we’ve got to get into the mind of the motivations of the person, and I’d just be intrigued, from the Minister, as to how you think that would work in in practice.

I’m also interested in the question of—so all individual contracts have to have everything, it seems, included in a collective contract, if there is one in place, and then can improve on it in terms of conditions. But you’re limiting the ability to have any lesser conditions as part of an individual contract, and I was just curious—I could understand partly the thinking behind it, but is not the purpose of an individual contract, assuming that it is within all the other laws of the land, in terms of minimum wage and all those sorts of things and provisions—why it has to be exactly the same as the collective contract.

Responding to the first question raised by the member, it goes back to my previous comments, really. We can provide wording in the legislation to make it very clear that it is not appropriate to take this kind of retaliatory action in response to people raising complaints. The fact that there’s an intents-based test here, and I think the precise wording—where am I?—in clause 17 here, is “if the decision … is motivated, wholly or partly, by the exercise or proposed exercise by the worker of any right, power, authority, or remedy”. I mean, ultimately, this is where authorities who are hearing complaints will need to make judgments based on evidence that is presented by the different parties.

That is no different from other aspects of employment law where intent may come into it, or indeed criminal law or other aspects of the law where competent authorities need to assess the evidence that parties with different views put before them to determine whether it is likely that that happened. And so we need to leave it with those authorities to determine. The important thing here is to draw a very clear line in the sand and say that it would not be acceptable, in the view of this Parliament, for someone to have their contract terminated purely because they had raised a legitimate complaint, for example, about discrimination, bullying, or harassment, which I don’t think is something that any of us would wish to see.

In respect of the member’s second question, the building blocks of bargaining, under this legislation, are, effectively, that we look to put in place minimum standards, should worker organisations choose to initiate for them at the occupational level, then potentially the enterprise level, and then the individual level. So it’s about having base standards that are developed at the occupational level, which will likely be more general. But then the bill very specifically provides for the additional flexibility for there to be individual conditions that are negotiated at that level. This is partly a response to some of the critiques that have been put forward that this is about inflexibility. Well, no, it’s not, because we clearly build into the legislation that leaves the ability for there to be individual bargaining on top of that core basic set of terms and conditions that will get bargained at the occupational level.

Thank you very much, Madam Chair. I wanted to move on to a different section of Subpart 2, and that is in regards to clause 20, which relates to penalties relating to individual contracts. The specific clauses that I’m interested in there are 1AAA and 1AAB in particular, in regards to noting that “An engager is liable to a penalty under this Act if the engager enters into an individual contract that includes a term that has the effect of breaching …”, and then 1AAB, again, relating to those penalties. My questions are in regards to the scope of these penalties, and seeking clarification from the Minister in terms of how he sees these new arrangements working in practice, particularly around the penalty aspect.

The second point of that is around the scope of what those penalties could or will entail. And the third aspect is in terms of the process or if there will be any process in terms of when these arrangements are in play, what arrangements will there be in regards to subsequent review or monitoring, in regards to ensuring that that aspect around penalties relating to individual contracts is appropriate and fit for purpose and, I guess, balanced in regards to the nature of, you know, penalties applied to the circumstance of the individual.

So that’s the three or four questions that I’ve got, again, in regards to Part 2, clause 20 of the bill. [Bell rung] Thank you much, Madam Chair. I do know and I do acknowledge the Minister that we’ve had a reasonably good session in terms of back and forth. So we’ll just go to another area of questioning just to provide a little bit of time and capacity for officials just to come back on, on a couple of those previous questions, because I think they are appropriate, and we’ll keep moving.

So I think in regards to the penalty portion that I was referring to before, I think the element that, in particular, I’m interested in hearing about is in terms of the scope in terms of the range in which those penalties involve, and in what is the expectation in terms of baseline in terms of the de minimis in terms of when those penalties will come into play and when they won’t. In particular, what are the agencies or what are the groups that are going to be involved in terms of enforcement around that penalty regime? As I mentioned, I think the clarity around the monitoring and review of that would be useful context just so that we can understand the scope of the implications of that clause within the bill.

I thank the member for his questions about penalties. These provisions link through to Part 4, which does set out much more information about how the penalty regime will apply. They can potentially be applied by the Employment Relations Authority, and depending on whether it’s an individual or a body corporate, penalties of up to $10,000 or $20,000 can apply for various breaches of provisions.

In terms of there being a testing out as to the appropriateness of that regime, really, it’s the same as the rest of our employment relations legislative regime in that parties are able to test their cases with that particular authority and then will have appeal rights if they believe that they have been treated inappropriately. Of course ultimately, there is a role for this House to keep an eye on things and to ensure that they are being applied appropriately.

Thank you, Madam Chair. In his opening intervention in Part 2, Minister Wood made some interesting comments about National’s support for aspects of it, as set out in the National Party view in the Education and Workforce Committee report. That is true, but that doesn’t mean we can support Part 2 in its entirety. One of the reasons for that is that it’s largely redundant: it sets out a range of obligations that are already in law. The most obvious one of those is the Health and Safety at Work Act. The bill, basically, requires the parties to comply with the Act. Well, we don’t need another piece of legislation to say that the Health and Safety at Work Act should be complied with. Whether one is an employee, a contractor, an employer, a host: they all form a part of the transaction, in the Health and Safety at Work Act—as I’m sure the Minister knows, because he’s responsible for it.

An obligation to comply with the Human Rights Act—well, of course those are obligations. An obligation to act in good faith is actually set out in a wide range of contract law, both black-letter law and judge-made law. So, really, when we look through Part 2, nobody can disagree that people shouldn’t mislead or deceive, that they should act in good faith, that they should describe the nature of the relationship and embark on the responsibilities that are set out in Subpart 2.

But this is kind of emblematic of this bill overall: it is a solution looking for a problem, and the biggest problem, frankly, is the fact that the unions want to look after people who want to have it both ways: (a) the benefits of independent contractor relationships, and the protection of employment if things go wrong, which was the uncertainty that the film makers had in 2009 when they wanted to come and make the hobbit movies. So I say to the Minister—and he can take a call and disagree with me if he wishes, but there is very little, if anything, in Part 2 that is not already set out either in case law or statute.

I’m happy to take a call on those matters. My understanding is that in respect of the references both to the Health and Safety at Work Act and Human Rights Act obligations, it was a particular request of the working group for these provisions to be reflected in the legislation so that it was crystal clear that they applied, given that we are dealing with a relatively novel piece of legislation and a new set of employment relationships. It was their wish that these be in here. The member is right that those provisions would apply regardless—one can consider it to be belts and braces, if we want to describe it that way—but that is why that is reflected here.

It’s a little bit different, I think, with the good-faith provisions, in that it isn’t the case that good-faith provisions would naturally apply to contractor arrangements. Good-faith provisions are embedded in employment law to guide relationships between employers and employees; they wouldn’t automatically flow to contractors, unless they are specifically embedded in the legislation, as we’ve done here.

Well, I would make two points—I appreciate Minister Wood’s response, but I would make two points in that regard. One, the very fact that a working group asked for something doesn’t compel a Minister to grant it. Actually, one of the roles of a Minister is to say, “Good idea—we’re not going to do it, because it’s not necessary.” I think, again, that’s emblematic of a Government that seems to be led more by working groups than by independent thought and careful consideration. There is no need to reinforce the Health and Safety at Work Act in this bill, or the Human Rights Act.

As far as duties of good faith, that’s not entirely correct. A person can take a course of action for breach of contract for a number of reasons, not the least of which could be misleading or deceptive behaviour in the contract negotiation process, particularly if the courts deemed that to be harsh or oppressive behaviour, or if there was misleading information. So, again, this is kind of belts and braces, but it’s wholly unnecessary.

I move, That the question be now put.

The question is that the Minister’s amendments to Part 2 set out on Supplementary Order Paper 234 be agreed to.