COSBOA, Tony Burke face off in campaign to split contentious IR reforms

Leading advocacy group the Council of Small Business Organisations Australia (COSBOA) is locked in a staredown with Employment Minister Tony Burke, as the federal government refuses to split off elements of its highly contentious Closing the Loopholes industrial relations reform package.

COSBOA on Friday released its submission to the Senate committee tasked with assessing the proposed legislation, which would overhaul the definition of casual work, underwrite new standards in the gig economy, and criminalise wage theft at the federal level.

While opposing most of the changes, COSBOA said less contentious elements of the Bill should be carved away from the Closing the Loopholes package.

Those measures include provisions to close a loophole in the small business redundancy scheme, establish workplace protections for family and domestic violence survivors, expand workers compensation for employees experiencing PTSD, and reshape Australia’s asbestos safety regime to also cover silicosis and other silica-related diseases.

A push by independent Senators David Pocock and Jacqui Lambie to separate those provisions has garnered Coalition support, with advocates claiming these less contentious measures could be passed ahead of what is likely to be a bitter and protracted battle over the broader Closing the Loopholes package in the new year.

Those “elements of the Bill pertaining to first responders, asbestos safety, redundancy exemptions, and discrimination are not opposed,” wrote COSBOA CEO Luke Achterstraat in the submission.

“It is suggested that these portions should be split from this omnibus bill and passed.”

That view puts the nation’s leading small business advocacy group at loggerheads with Minister for Employment and Workplace Relations Tony Burke, who on Thursday reiterated his position that no split should take place.

The entire package of reforms is about worker safety, not just the non-contentious provisions underlined for a carve-out, Burke argued in an op-ed.

“The criminalisation of industrial manslaughter is about ensuring that employers take workplace safety seriously,” he wrote.

“Closing the labour hire loophole is a safety measure too… Criminalising wage theft and stopping the exploitation of casual workers are also safety measures.”

“Some of those asking us to split the Bill have the best of intentions,” he continued.

“They have legitimate concerns about safety in workplaces around the country. I get that.”

However, Burke claimed some voices calling for a split have ulterior motives, namely the delay of provisions he says will deliver more workplace rights to Australian workers.

“The government doesn’t want to see any of this delayed – we want to deliver wages, security and safety,” he continued.

“That way workers won’t have to choose between their safety and their pay.”

Broad opposition, some support from small business lobby

Beyond calls to split off certain non-controversial measures, the COSBOA submission makes clear the group’s view on the most hotly-contested measures.

A push to establish a new definition of casual work — which Burke claims will stop employers from recruiting casual staff as de facto full-time employees — is opposed by the small business lobby.

“The changes will increase complexity, uncertainty and a potential significant legal risk for small employers seeking to engage casuals,” COSBOA said.

COSBOA also opposes changes to the gig economy sector relating to “employee-like” forms of work that fall between employment and independent contracting.

While Burke maintains the changes will hone in on the gig economy, COSBOA fears empowering the Fair Work Commission to set new standards in the space could flow through to traditional independent contractors.

“The contractual terms and intent between the business and an individual for an independent contracting arrangement is best understood by the parties involved, and should not be overridden or altered by a court or tribunal considering abstract, imprecise, and ambiguous matters”, COSBOA said, excepting cases involving existing unfair contract terms protections.

Labour hire changes flagged by the Labor government do include a small business exemption for employers with fewer than 15 staff.

Even so, COSBOA has sided with employment groups serving larger organisations and stands against the measures, citing concerns over the numerous ways ‘small business’ is defined by other statutory bodies.

COSBOA brought a more nuanced take to the wage theft provisions suggested by the federal government, which include a carve-out for small businesses through compliance with a proposed voluntary code.

This code “must be developed well in advance of any new prosecution regime being introduced”, the organisation said.

The “overcomplexity of the industrial relations system” must also be addressed to cut down on wage underpayments, COSBOA added.