The Australian Retailer’s Association (ARA) has raised concerns about new recommendations to the Closing Loopholes Bill that “threaten to make a bad bill worse”.
Several recommendations were made in a report handed down by the Labor-led Senate Education and Employment Legislation Committee, which added several additional proposed measures to the legislation without making any concessions to the original Closing Loopholes legislation.
One of the new recommendations include the 'right to disconnect' for employees, which involves amending Fair Work legislation to incorporate a compliant right to disconnect term, and empowering the Fair Work Ombudsman to make ‘stop orders’ if a dispute cannot be resolved at the workplace level.
Other raised concerns in the report include whether the definition of casual work should be changed, with the ARA claiming doing so could lead to negative outcomes.
"These changes could create a disincentive for retailers to engage seasonal casuals on short-term, fixed work patterns during peak trading periods, which are often to the mutual benefit of both employer and employee," ARA wrote in its submission.
"There is also a risk that this new definition of casual employment would discourage employers from offering regular patterns of work to casual employers who may prefer certainty in terms of their working hours, without any intention of ever converting to a permanent role."
However, a raft of key recommendations relate to the road transport industry, which the ARA claim can directly impact retailers. Currently, the IR Bill would give the Fair Work Commission (FWC) the power to set minimum standards for the road transport industry, which would apply to regulated road transport contractors (contractor drivers) and road transport businesses.
In its submission, the ARA said the these changes would allow the FWC to make ‘road transport industry contractual chain orders’ that confer rights and obligations on participants in the road transport industry supply chain.
"This is of concern to the ARA as retailers rely heavily on an efficient supply chain to ensure that the sector can continue to operate and support local communities, especially during times of disruption," the ARA wrote. "This issue is likely to lead to substantially higher transport costs which will then be passed on to retailers, hurting small businesses and jobs.
"Equally concerning, these provisions would relate to drivers in the road transport industry as well as anyone who is ‘connected with the road transport industry’ or meets requirements prescribed in regulation by the Minister. This definition is too broad and has the potential for unforeseen consequences on costs and productivity."
Key recommendations relating to the road transport industry include adding consequential amendments required to give effect to the principle of contractual chain accountability, reducing the 24 months’ notice period for a road transport minimum standards order to 12 months, and introducing a new failsafe mechanism, by which the Minister, or the FWC on application, "may defer or suspend all or part of a road transport or employee-like minimum standards order, while the FWC conducts a review to consider whether to vary or revoke its terms."
The committee also recommended the Government examines the merits of a proposal to amend the bill to require owner drivers, or representatives of owner drivers, to be included on a road transport advisory group subcommittee when minimum standards orders covering owner drivers are being considered.
In response to the committee's report, ARA CEO Paul Zahra said the recommendations threaten to make a bad bill even worse.
“We are urging the opposition and crossbenchers in both houses not to pass the legislation with these additional measures,” Zahra said.
“Our primary concern remains the proposed changes to casual work arrangements, particularly for small businesses. These complex changes would create unnecessary confusion without any material upside in terms of higher conversion rates to permanent employment.
“While we remain opposed to these and other changes built into the remaining provisions, we have proposed some workable recommendations if the Senate is contemplating amendments to the legislation.”
The report also outlined several dissenting opinions that highlight many of the concerns employer groups have raised about the Closing Loopholes legislation.
“The ARA welcomes the dissenting reports from Coalition Senators and the Jacqui Lambie Network, along with the additional comments by Senator Pocock’s,” Zahra said. “We thank Crossbench Senators for their recommendations and urge the Senate to further pursue amendments to this flawed legislation.
“The dissenting reports highlight the need to further scrutinise this legislation when Parliament resumes next week and so we urge the opposition and crossbench not to support any measures that would circumvent debate or due process.”
The ARA thanked Senators Michaelia Cash, Pocock and Lambie for their actions.
“We have been encouraged by our engagement with the crossbench and opposition and look forward to engaging constructively with the government in the days and weeks ahead.”