The federal government has been forced to abandon the bulk of a controversial industrial relations bill, failing to negotiate it through the Senate.
Key points:

  • Only one measure in the government’s suite of reforms has passed successfully
  • The government has been locked in negotiations with the Senate crossbench
  • Senator Michaelia Cash says the government agreed to make changes to get the most critical part of the bill through

The only measure in the wide-ranging bill successfully passed was to legally define casual work, in an effort to avoid leaving businesses liable for potentially billions of dollars in back-pay.
Employers will also be compelled to offer casual employees either permanent part-time or full-time work after 12 months of regular shifts but Labor and the unions argue the provision is unenforceable.
The government was locked in negotiations with the Senate crossbench throughout this week, but came up largely empty-handed.
It had sought to make wide ranging changes in areas like enterprise bargaining, award simplification and wage theft.
The wage theft elements of the bill were particularly popular, enjoying broad cross-party support, but the government decided to carve it out of the bill once it became clear the bulk of the changes would not pass.
Acting Minister for Industrial Relations, Senator Michaelia Cash, said the government was willing to make changes needed to get the most critical part of the bill passed.
“Today as a government we recognise that we do not have the numbers in the Senate,” she said.
“In order to pass legislation we must negotiate, and again I thank those in the crossbench that have negotiated openly and constructively with the government.”
But some members of the crossbench, like Centre Alliance Senator Stirling Griff, were scathing about the decision to remove the wage theft provisions.
“Shame on you all for trashing such an important amendment,” he told the Senate.
The bill must now return to the House for final passage.
Casual work to be legally defined for the first time
The genesis of the bill was an attempt to define casual work, and after months of work on the omnibus bill it is almost all that remains.
Casual work had not before been legally defined, until the Federal Court last year decided that anyone doing “regular, certain, continuing, constant and predictable” shifts was entitled to full-time entitlements.
It sparked fears that without a new definition, business could be liable for billions of dollars in backpay despite paying employees a casual leave loading.
The bill defines casuals as someone offered work without “firm, advance commitment” of ongoing opportunities, and eliminates the risk of backpay.
The ACTU and Council of Small Business had, in a rare show of unity between the unions and the employer group, provided an alternative and more specific definition of casual work.
Some of the other changes to workers’ rights have been left with an uncertain future.(Flickr: Pam Loves Pie
It was eventually adopted by Labor and introduced as an amendment, but was voted down in the Senate.
Employers will also be compelled to offer their casual employees full-time or permanent part-time work where they have been working consistent, regular shifts for 12 months.
But it includes an exemption for employers who have reasonable grounds not to.
The final bill provides for employees to take disputes over those matters to small claims courts, within the Federal Circuit Court or state and territory courts.
Small businesses are exempt altogether, but employees can request a conversion in their contract.
Broad suite of IR reform abandoned for now
The government introduced the legislation into the Senate on Tuesday, with an aim to have it passed before the end of this week.
If it did not pass this week, the concern was it might not be dealt with until June, after Senate estimates and the May budget.
The original reforms would have meant part-time employees could pick up extra work at their usual pay if they and their employer agreed to the change without having to change their regular pattern of hours.
Employers would have been able to apply to offer employees two-year pay deals that did not meet the “better off over all” test in “limited circumstances”.
Acting Industrial Relations Minister Michaelia Cash said the government recognised it did not have the numbers it needed(ABC News: Matt Roberts
The government said that was to help businesses hit by coronavirus, but was eventually scrapped before the bill was introduced due to significant backlash.
Businesses in charge of major “greenfield” projects could place employees on agreements of up to eight years.
It would have also meant a crackdown on wage theft.
All of those changes have been left with an uncertain future.
Labor claims government in ‘crisis’
The government was forced to cut-short debate on the bill, in an effort to have it voted on early on Thursday.
Labor leader in the Senate Penny Wong said that move, combined with the gutting of most of the bill, demonstrated the government had lost control of the Senate.
“The Senate is seeing the consequences of a government in crisis, trying to ram this legislation through,” she said.
“Trying to salvage some pride by passing a bill that on your own admission you’re going to gut because you haven’t got the numbers.”
Recognising the possibility the government might withdraw the bill altogether, the ACTU and Council of Small Business earlier made a joint plea for some agreement to be found.
The two groups put together a joint suite of amendments they had agreed upon, addressing a range of the more contentious measures in the bill.
Labor Senator Penny Wong says the government has lost control of the Senate.(ABC News: Luke Stephenson
The measures would have further tightened the definition of casual work, enforced arbitration if employers and employees could not agree on a transition to permanent part-time or full-time work after 12 months, and dealt with concerns around potential backpay.
Peter Strong from the Council of Small Business said they just wanted some certainty for casuals.
“We want change to go through,” he said.
“What we’re hearing is it’s all or nothing, well that’s just crazy, that means you get nothing.
“So we want these changes we’re proposing to go through.”

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