2020-11-10
As I said in my speech in the second reading debate, the Economic Recovery Package (JobMaker Hiring Credit) Amendment Bill 2020 grants very broad powers to the minister to basically hand out $4 billion of public money to businesses, and it doesn't do much else. This bill doesn't actually establish the JobMaker hiring credit scheme. It doesn't provide a single detail about the scheme. There's nothing about eligibility criteria or anything else for that matter.
This amendment from Senator Patrick intends to return some parliamentary oversight to the scheme. This will allow direct amendment of the bill if we require it later on, as opposed to just having to disallow certain things which we think are harmful for the community. We believe that the JobMaker hiring credit should be created through legislation and it should be subject to parliamentary scrutiny. We completely support Senator Patrick's amendment to bring the rules into the legislation, albeit still in an exposure draft sense, but then we can always amend them later if things change. The Greens will be supporting Senator Patrick's amendment.
Greens amendment 1I move Greens amendments (1) and (2) on sheet 1064 together:
(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.
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.
Greens amendment 2I move Greens amendment (1) on sheet 1088:
(1) Schedule 1 , page 3 (before line 27) , before item 5 , insert:
4B After section 7
Insert:
7B Requirements for rules that provide for jobmaker hiring credit scheme—ineligibility for paying increased dividends
(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.
(2) The rules must provide that an entity is not eligible for the payment at any time during the relevant period if:
(a) during the period beginning on 1 March 2020 and ending at the end of the relevant period the entity pays dividends to shareholders of the entity; and
(b) the Commissioner is satisfied that the amount of the dividend exceeds the amount of the last such payment made by the entity.
We are moving this amendment because there is nothing in this bill that stops companies paying increased dividends during the pandemic while receiving JobKeeper. These companies will be allowed to use and abuse public money in the same way under the JobMaker hiring credit scheme. That is just obscene. This amendment will make sure that businesses who have paid increased dividends from 1 March 2020 through to the end of the scheme, which is currently 6 October 2022, will be ineligible for the JobMaker hiring credit, because they should be. It is public money in this scheme that is being used to provide employment—insecure, I might add, and precarious employment—to people, but public money should in no way be abused in this obscene way, where shareholders get dividends for it. I commend this amendment to the Senate.
Greens amendment 3I move Greens amendment (1) on sheet 1066:
(1) Schedule 1, page 3 (before line 27), before item 5, insert:
4C Before section 8
Insert:
7C Requirements for rules that provide for jobmaker hiring credit scheme—ineligibility for firing employees etc. to obtain payments
(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.
(2) The rules must provide that if:
(a) an entity terminates the employment, or reduces the ordinary hours of work, of an existing employee of the entity; and
(b) a purpose of doing so (whether or not the sole or dominant purpose) is any of the following:
(i) to engage one or more other employees in respect of whom the entity can claim the payment;
(ii) to facilitate an associated entity (within the meaning of the Corporations Act 2001) of the entity engaging one or more other employees in respect of whom the associated entity can claim the payment;
(iii) to otherwise enable the entity or associated entity to be eligible for the payment or increase the amount of the payment to which the entity or associated entity is entitled;
then the entity, and the associated entity (if any), are not eligible for the payment in respect of any employees.
(3) To avoid doubt, this section and rules made for the purposes of this section do not limit the Commissioner's powers under section 19 (contrived schemes).
This amendment is also co-sponsored by the Labor Party. This amendment is about introducing safeguards in the bill. We have deep concerns that, as the bill currently stands, there is a real possibility that workers will lose their jobs or might lose hours as a result of the scheme. We are very concerned that a business will be able to fiddle with its staffing structures or its numbers to increase its headcount and it will also be able to fiddle with its payroll in order to receive this hiring credit, for instance. We want to make sure that that can't happen, and this amendment introduces those safeguards for workers.
The amendment prevents the firing and hiring of workers in order to receive the credit and it protects ordinary working hours of workers who already work for those companies, to make sure that their hours aren't reduced to make way for the minimum 20 hours of credit for eligible workers. It's a pretty straightforward amendment. It provides safeguards for the workers who are currently working within those companies. I hope that my colleagues can support this amendment, so we can at least improve this pretty terrible bill a little bit. I commend the amendment to the Senate.
Greens amendment 4I move Greens amendment (1) on sheet 1086.
(1) Schedule 1, page 3 (before line 27), before item 5, insert:
4D Before section 8
Insert:
7D Requirements for rules that provide for jobmaker hiring credit scheme—Fair Work Commission powers to deal with disputes
(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.
(2) The rules must provide for the Fair Work Commission to be able to deal with disputes that arise in relation to or in connection with the scheme for the payment, including (without limitation):
(a) disputes about the termination of the employment of an employee of an entity; or
(b) disputes about a reduction in the ordinary hours of work of an employee of an entity; or
(c) disputes about other conduct of an entity that adversely affects employees; or where the termination, reduction or other conduct is for the purposes of, or connected with, an entity seeking to become entitled to payments under the scheme, or to increase the amount of payments to which the entity is entitled under the scheme.
(3) The rules must provide for the Fair Work Commission to deal with such disputes on application by any of the following:
(a) an employee;
(b) an employer;
(c) an employee organisation;
(d) an employer organisation.
(4) The rules must provide for the Fair Work Commission to be able to make orders in relation to such disputes, including (without limitation) any of the following:
(a) an order for reinstatement of an employee;
(b) an order to reverse a reduction in an employee's ordinary hours or work;
(c) any other order that the Fair Work Commission considers appropriate.
Additional function of the Fair Work Commission
(5) The functions of the Fair Work Commission include dealing with disputes as referred to in this section.
Note: Other functions of the Fair Work Commission are set out in section 576 of the Fair Work Act 2009.
(6) For the purposes of section 595 of the Fair Work Act 2009 :
(a) this section and rules made for the purposes of this section are taken to be a provision of that Act; and
(b) the rules must provide that the Fair Work Commission may deal with a dispute by arbitration.
Note 1: Under section 595 of the Fair Work Act 2009, the Fair Work Commission may deal with a dispute only if expressly authorised to do so under or in accordance with another provision of the Act.
Note 2: In addition to arbitration, the Fair Work Commission may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2) of the Fair Work Act 2009).
This amendment is about the Fair Work Commission and dispute resolution. It's co-sponsored by the Labor Party. It is about making sure that workers have adequate protections, because as the bill currently stands there is no dispute resolution process for resolving issues that might come up. Workers who have been fired or who have had their hours reduced or undercut will have no avenue. This amendment will make sure that the Fair Work Commission has the power to deal with disputes relating to this particular scheme that the government is creating at the moment. With this amendment, workers, employers, unions and employer groups can lodge a dispute. That's a bare minimum that workers need to be allowed to get, and this scheme currently doesn't have that, so I commend the amendment to the chamber.