Government Senators’ Additional Comments
Government Senators agree with the general thrust of the
report and its general recommendations but would like to make some additional
and dissenting comments in relation to specific areas mentioned in the report:
Government Assistance
The Minister for Workplace Relations and Small Business
launched the outworker campaign on 18 June 1998.The bilingual help line will
run for eight weeks, seminars have already been conducted for community groups
and manufacturer seminars will be held in Melbourne and Sydney in late July.
This will be followed up by targeted compliance activity to ensure that
manufacturers understand and are complying with their award obligations.
Government Senators do not agree that industry assistance
and support should only be provided to retailers and manufacturers who are
signatories to the Homeworkers Code of Practice.
Deeming Outworkers as Employees
It is reasonable for an outworker to make a legitimate
choice whether to be an employee or an independent contractor. Deeming
provisions would eliminate that ability to choose, therefore deeming provisions
in absolute terms are not supported.
It is acknowledged that there are problems regarding
coercive or fake independent contract agreements entered into to avoid
employment obligations, however, deeming provisions would also affect genuine
arrangements. An approach to this problem such as the reverse onus of proof in
the Clothing Trades Award 1982 could be a more acceptable solution.
There are subsidiary problems associated with national
deeming because such provisions are of limited worth if not universally
applicable, especially for national operators. However, for some issues,
benefits through use of the corporations power could be an improvement (eg
action taken by the Commonwealth in relation to Australian Workplace
Agreements, which are currently available to corporations only (outside
Victoria and the Territories and Commonwealth employment) pending complementary
State legislation).
In addition, the powers referred to the Commonwealth by Victoria
do not extend to legislating with respect to independent contractors generally.
The sole power referred in relation to independent contractors is power in
respect of freedom of association. Referred powers only deal with specific
subjects and are generally limited to ‘employees’ and ‘industrial disputes’ (ie
employee-related disputes).
Government Senators believe that the issue of deeming
provisions requires more than a partial response and it is appropriate that
this issue be further considered by the Labour Ministers Council because a
coordinated approach is preferred for this issue.
The Award review process
The Committee is aware that the following is an allowable
award matter: “pay and conditions for outworkers, but only to the extent
necessary to ensure that their overall pay and conditions of employment are
fair and reasonable in comparison with the pay and conditions of employment
specified in a relevant award or awards for employees who perform the same kind
of work at an employer’s business or commercial premises.”
Opposition Senators assume that award simplification will
result in changes to awards affecting the TCFUA’s ability to prosecute
companies. This is not an assumption which can be founded on the Government’s
legislation, nor is it appropriate to pre-empt the Commission’s decision on
this matter.
Furthermore, the Commission has a statutory obligation to
review awards and it is inappropriate that the Committee recommend that it deal
with awards in a way which is inconsistent with that obligation.
ILO Convention on Homework and Child Labour
The Australian Government has taken an active role on this
issue, and will continue to do so, through its strong support for the
development of the new ILO Convention, on the worst forms of child labour.
It is
anticipated that the new convention will be adopted in 1999 and should become
the ILO’s main standard on child labour. It is hoped that, unlike the ILO’s
current standard on child labour (c.138, the Minimum Age Convention), the new
Convention can be widely ratified.
Regarding ILO Convention 177 and Recommendation 184, in
accordance with the Government’s treaty-making policy, announced by the
Minister for Foreign Affairs in May 1996, there are several pre-conditions
before ratification of a Convention can be considered. These are:
- Consultation must take place with interested parties. In the
case of ILO Conventions, this includes the States and Territories, the ACCI and
the ACTU.
- There must be compliance with the provisions of the Convention.
Furthermore, it is usual Australian practice not to ratify
ILO Conventions unless the State and Territory Governments have formally agreed
to ratification.
It is therefore premature to talk of ratifying ILO
Convention 177 without fulfilling these pre-conditions. The Government is
undertaking the necessary consultations with a view to determining whether
ratification should be pursued.
Occupational Health and Safety Issues
Government Senators recommend that the National
Occupational Health and Safety Commission examine Dr Mayhew’s
report and consider implementing strategies a) and b) in the future.
Additional comments
Government Senators note the claims made by some
manufacturers that the uncertainty relating to some of the obligations
contained in industry codes and the threat of prosecution by the unions for
minor technical breaches of the clothing award are forcing manufacturers to
assemble the product offshore.
It should also be noted that clothing production is conducted
by ethnic minorities in South Western Sydney and areas of Melbourne and these
business activities are crucial to the work opportunities of these communities.
Given this, it is appropriate to examine whether the code is having the alleged
effect of increasing offshore manufacturing of clothing products.
| Senator Alan Ferguson |
Senator Grant Chapman |
Senator Bill Heffernan |
Navigation: Previous Page | Contents | Next Page