Coalition Senators' additional comments

1.1The Fair Work Amendment Bill 2024 (the bill) was introduced into the Senate and read a first time on 28 February 2024. The following day it was referred to the Senate Education and Employment Legislation Committee with a report due on 14 March 2024.

1.2This bill has been created to fix a section of the Albanese Government's 'Closing Loopholes' legislation which put in place potential criminal penalties for employers who contact their employees outside of work hours if there is a 'stop contact order' in place.

1.3The Coalition voted against the legislation that allowed for criminal penalties for businesses who contact their employees outside of work hours. The Labor Party voted for these criminal penalties, knowing that they were in the bill, despite claiming to not support them. The bill was described by one stakeholder as 'a drastic overreach by the Government into Australian workplaces and is incompatible with a modern, flexible working environment'.[1]

1.4Coalition Senators are concerned with the Albanese Government's approach to knowingly vote for bad legislation which they apparently disagree with because they can simply legislate to fix it at a later date. Even more concerning is that Albanese Government ministers have blamed the Coalition for this provision passing, despite all Coalition Senators and Members voting against it.

1.5It is a nonsense for the Albanese Government to blame the Coalition for not fixing the Government's own mess it created. It is also surprising that the Government apparently didn't realise that criminal penalties were included in this legislation until the day it was to be voted on. During the recent Senate Estimates process, it was discovered that Minister Burke's own department drafted the 'Right to Disconnect' amendment and had started drafting the amendment back as early as September 2023.

1.6The Albanese Labor Government, in a secret deal, gave the 'right to disconnect' amendment to the Australian Greens to move so the Government did not have to go through the consultation process that is required if the amendment was moved by the Government.

1.7As uncovered in Senate Estimates, the Albanese Government claim that they were only made aware that the 'right to disconnect' provisions included a potential criminal penalty at 11:45am on 8 February 2024. This is despite the Government drafting the amendment, and there being numerous drafts of said amendment – as department officials confirmed at Senate Estimates.

1.8Despite knowing that there were criminal penalties in it, every Labor Senator and Labor MP voted for the amendment which included criminal penalties for employers and employees.

1.9Instead of delaying the vote, the Albanese Government voted for their amendment which they knew contained potential criminal penalties for small and family businesses who dare to contact their own employees out of hours.

1.10Because of this incompetence from the Albanese Government, we have ended up with legislation that contains the potential for both employers and employees to face criminal penalties for breaches of right to disconnect stop orders imposed by the Fair Work Commission.

1.11This sloppiness from the Government continues a consistent pattern of behaviour from the Albanese Government when it comes to formulating legislation; lack of proper consultation with stakeholders, rushed and sloppy drafting of bills, and then needing to clean up its own mess.

1.12The Albanese Government deliberately avoided scrutiny on its 'right to disconnect' laws by allowing their Australian Greens allies to introduce the laws in the Senate and then force a vote within 24 hours.

1.13These sentiments were echoed by the Australian Chamber of Commerce and Industry who in their submission said they were disappointed 'by the rapidity with which the right to disconnect was pushed through Parliament during the legislative process… resulting in a mistake which would see employers potentially face criminal penalties for breaching a relevant order'.[2]

1.14In relation to the right to disconnect provision, in their submission the Business Council of Australia outlined they remain 'concerned about the potential impact on businesses, particularly those that operate on both coasts of Australia or internationally. It is unclear what this will mean for people working in different time zones, and how businesses will need to respond in those circumstances'.[3]

1.15The Labor/Greens amendment is yet another blow to productivity, which is already lagging under the Albanese Government, and does nothing to chart a course to improve it. If anything, it will only contribute to a further decline.

1.16In their submission the Business Council of Australia also highlight the lack of agenda the Albanese Government has in addressing lagging productivity:

Increases to productivity are required to sustain real wage growth. They also allows business to reduce costs to consumers of products and services. This is essential when cost of living pressures are at the forefront of concerns for Australians. However we are seeing Australia's productivity declining, falling by 3.7 per cent in 2022-23.[4]

1.17Coalition Senators will support the Government's belated attempt at fixing their own legislation to remove potential criminal penalties for employers who contact their employees outside of work hours, but we do not believe this goes far enough.

1.18The Coalition does not support the recent 'right to disconnect' provisions passed by the Parliament and will be moving an amendment to this bill to remove that section entirely. The 'right to disconnect' provisions were not subject to any scrutiny; they will create significant confusion and uncertainty for workplaces across the country and will reduce the ability for workplaces to have flexible working arrangements.

1.19Should this amendment not succeed, the Coalition will move that employers should also not be subject to civil penalties, including fines of up to $18 000, from the 'right to disconnect' provisions and we will also move that small businesses be exempt from the 'right to disconnect' changes altogether.

1.20The Coalition's amendments are:

2415 - This amendment will repeal the entirety of the Right to disconnect provisions.

2416 – This amendment will remove all civil penalties from the right to disconnect. This will mean employers and employee could not face financial penalties as a result of breaching a 'stop contact order'. This does not stop it being a workplace right, which means adverse actions are still not allowed, and other non-financial remedies can be followed.

2417 – This amendment would exempt employers and employees from the right to disconnect if they are own or work in a business with 20 or less employees.[5]

1.21Coalition Senators will support the removal of potential criminal penalties for employers who contact their employees outside of work hours.

1.22Coalition Senators recommend repealing the 'right to disconnect' provisions which recently passed the Parliament, which were not subject to any scrutiny, will create significant confusion and uncertainty for workplaces across the country, and will reduce the ability for workplaces to have flexible working arrangements.

1.23If the Senate does not agree to repeal the right to disconnect provisions that were legislated as part of the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023, that the Senate pass the amendments circulated by the Coalition on sheets 2416 and 2417, which respectively will remove all civil penalties from the right to disconnect provisions, and would exempt businesses with less than 20 employees from the right to disconnect entirely.

Senator Matt O'Sullivan

Deputy Chair

Senator for Western Australia

Senator Slade Brockman

Member

Senator for Western Australia

Senator the Hon Michaelia Cash

Participating member

Senator for Western Australia

Footnotes

[1]Australian Chamber of Commerce and Industry, Submission 4, p. 3.

[2]Australian Chamber of Commerce and Industry, Submission 4, p. 3.

[3]Business Council of Australia, Submission 3, pp.1–2.

[4]Business Council of Australia, Submission 3, p. 1.

[5]Senator the Hon Michaelia Cash, proposed amendments 2415, 2416 and 2417 to the Fair Work Amendment Bill 2024.