Page 2661 - Week 10 - Thursday, 15 October 1992
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Let us look at the Bill and see where it is technically flawed. It has three fundamental flaws. Clause 3 of the Bill broadens the definition of "employee" beyond one that exists within an employment relationship; that is, an employee can be taken to be a person who is employed under a contract for services. As Mr Berry might be aware, very recently a court decision suggested that a contractor is perhaps not subject to things such as the superannuation guarantee levy. This is outside the legal bounds of what constitutes an employment relationship between an employer and an employee. Let me give an example, and some people might consider it to be a ridiculous one. You contract a builder to do an extension to your house and that extension takes 13 months. Under the provisions of this Bill, the builder may then be entitled to parental leave provisions, even though he has no direct employment relationship with you. I will be moving an amendment to delete that clause.
Let us look at the second area where the Bill is deficient. Clause 5 entitles an employee to the full provisions of the draft parental leave clause, set out in Attachment A - Mr Berry's Attachment A - to the parental leave case decision of the Full Bench of the Australian Industrial Relations Commission, given in Melbourne on 26 July 1990. Mr Berry might be aware that this provision has already been superseded by a subsequent decision by the Full Bench of the Australian Industrial Relations Commission - the reference is 1990 AILR, at page 284 - on agreed changes to the draft clause by the ACTU and the CAI. Therefore, the Bill refers to a draft clause that has since been revamped. The Bill will always remain technically faulty when it refers to a draft clause that is continually changing.
Mr Berry: That is rubbish.
MR DE DOMENICO: You had better make sure of your facts.
Mr Berry: It is rubbish to say that.
MR DE DOMENICO: Rubbish to say the truth? Let us look at the third area where the Bill is faulty. The Bill refers to a draft parental leave clause that encompasses provisions for part-time work. This automatically institutes part-time work provisions where they previously may not have existed. This is an intrusion into the way the private sector conducts its business. The provisions for part-time employment must be negotiated between the individual employer and employee and not be subject to legislation.
Mr Berry: Hewsonspeak, it seems.
MR DE DOMENICO: No. There are ways of fixing this, Mr Berry. For example, you can overcome the fact that it has been superseded by other decisions of the Australian Industrial Relations Commission in three ways. You can either amend clause 5 to capture all subsequent changes to the draft clause, as per the Full Bench decision of the Australian Industrial Relations Commission; or the entire clause can be read into the Bill, so that it becomes part of the legislation, as per the New South Wales Industrial Relations Act 1991; or, preferably, and this is what the Liberal Party will be saying, you can put in a draft code of practice instead of legislation.
Mr Berry: A code of practice by agreement.
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