Senator RYAN (Victoria) (12:48): I begin on the point that my colleague Senator Brandis finished on. I have looked through the government’s second reading speech on this bill, and I am struck by the fact that there is no case for change here. As Senator Brandis has outlined, this law functions well and it functions with cross-party support. I have read parts of the submissions from the committee but I have not read of a concern that it is not doing what it was intended, that it is not effectively protecting the rights of men and women around Australia, and particularly those with family responsibilities. No case has been established to do what Senator Brandis outlined—which was to dramatically widen the potential impact of the law.
Laws that have effects tests are quite dangerous. Senator Brandis outlined that it can be a case of legislative overreach. I would put to the chamber that a law that could see a great number of people—as Senator Brandis describes ‘paragons of egalitarianism’—being drawn before a commission, a tribunal or a court completely unaware that what they may have done may now be in breach of the law is actually a reflection on the law itself, not necessarily the persons being drawn before it.
There is a particular concern that I have here, which is that I see this as yet another example of a law drafted by the Labor government that is fine for large businesses. It may be fine if you are BHP, Coles or Woolworths, with a large human resources department, processes in place that actually allow for staff to be moved around and a lot more capacity to move your staff around in order to take into account family responsibilities—to be a good employer. But, while we all support a law that prevents intentional discrimination—’by reason of’, as Senator Brandis outlined—I have concerns about a law that dramatically limits the capacity of a small business with two or three employees to undertake what would otherwise be legitimate management of resources, where there was no allegation that someone was being discriminated against by reason of their family responsibilities. I think this is yet another example of the Labor Party’s misunderstanding or, in this case, complete lack of understanding of the management burdens, the red tape burdens, that government imposes on smaller businesses.
I have worked in large businesses and I have worked in small businesses. It is very easy when you work for a company with thousands of employees for employers to accommodate the needs of staff—and they can be due to personal circumstance or family circumstance. The public sector is a classic example where flexible work arrangements are much easier to accommodate. It is much harder for a cafe employing two or three people to do so. It does not necessarily mean that, because a wish cannot be accommodated, that person is being discriminated against by reason of their family responsibilities. But to draw the law this broad and to potentially draw those people into the net because they do not have the means to comply is, I think, a step too far. Whether it is an unintended consequence, I do not know. But I think it is a classic case of a complete lack of understanding of those resource constraints. I also have a concern that was expressed also during the debate on the Fair Work bills. That is: laws that are, by their nature, vague and difficult to comply with—even though it might be only a few words, even though it might seem like a fairly insignificant test to many in this place—impose a much more significant compliance burden than the words themselves would convey, because of the very vagueness of their terms. There could be a lack of certainty on the part of a business owner or a manager in the application of this new section proposed by the Labor government. If you do not know all the circumstances of an employee, how do you know the possible effects on their family circumstances of a decision you might make? I do not think it is reasonable. We have privacy laws. We do not necessarily want employers to be able to demand all the information about the family circumstances of their employees. But how can we judge them on the effect of their decisions if there is no allegation whatsoever that that person is being discriminated against because of their family responsibilities? I do not think these views are unreasonable, because I do not think that anyone in this parliament would say that there should be a capacity to discriminate because of family responsibilities. I do not, and I think that people of my generation, who went to school in the 1980s and finished university in the 1990s, come from a very different world. We cannot even contemplate a situation where women do not have the same opportunities as we do.
Australia has undergone quite dramatic change, and this law—which, as Senator Brandis outlined, is working very effectively and is supported across the parliament—is one of the reflections of that change. We are not proposing anything that would water it down. But a law that creates this degree of vagueness, a law that could unintentionally drag a lot of people into a net that is not based on the intent of their conduct, that is not based on discriminating against someone because of their family responsibilities, is, in fact, not a good law.
There are other ways in which we can go about supporting families, and governments of both persuasions have done so. But I think there is a limit to what we can legitimately expect our small businesses to undertake. This reflects a number of the concerns with the Fair Work bills. Under the Fair Work Act there is a right to request to have considered legitimate work arrangements because of family responsibilities, but again the clause is so vague. Even industrial relations lawyers and barristers cannot tell me what it means, because everyone is waiting to find out what the various rulings of Fair Work Australia—and then probably the Federal Court after that—actually mean in practice. We know that those laws are going to be expanded and expounded as more cases are brought before the bench in both instances. This government cannot even set up a Fair Work assistance line for a small business to ring when they want to ask, ‘How much do I have to pay my employee?’ With the modernisation of awards happening mainly outside my home state of Victoria, and because of the unique situation Victoria was in with respect to industrial relations for many years, a small business cannot ring up and ask, ‘How much do I actually pay the assistant in the pharmacy?’ or, ‘How much do I pay the waiter in the cafe?’ Fair Work Australia does not give an answer or, if you wait on hold for a couple of hours, it will give you a vague answer. It will not give you an answer to which it is binding, and that answer cannot be relied upon if you are subsequently found, despite having acted in all good faith, to have acted incorrectly.
Senator Ludwig interjecting—
Senator RYAN: My point simply is, Senator Ludwig, that the creation of vague aspirational language in legislation, which happens more in the United States than it does here, is not something that has traditionally come out of the Australian parliament. We have tended to apply tests, as Senator Brandis outlined, that are more about purpose than effects. I do not necessarily like them in competition law, as I am sure some of my colleagues know after debates we have had over the last few weeks. But in this case, vague aspirational language does not do anything to advance the cause and could actually serve to undermine support if people who are acting in good faith and are virtuous employees in every sense are being inadvertently dragged in because of a vaguely drafted section inserted in the act.