Page 3906 - Week 10 - Thursday, 28 August 2008
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .
concern. So, if I am at work and I am feeling that my wellbeing is not adequate, then, according to the bill, my employer has broken their legal duty, because, under this legislation, they have a legal duty to ensure it. Forget my wife and children, my doctors, my friends—it is now my employer’s duty to ensure my wellbeing. It is a legal duty imposed by the bill we are debating.
Aside from imposing very wide duties, this bill imposes these duties on a wide class of people, and this really concerns me. Mr Stefaniak said, “This is an old argument.” There have been High Court cases extending back to the sixties on what constitutes the master-servant relationship, and I know that term will upset Mr Gentleman. It is actually a term that has been examined by the High Court and has formed part of tax rulings, and it is a complex area of law. We have just jumped the divide here with this bill in imposing all new sorts of duties on a wide class of people. “Workers” are defined to include independent contractors. It also appears that “work” includes work done from home. When you have a situation like the one here where you have contractors coming in here to fix the light bulbs, suddenly you are responsible for their fatigue, for their wellbeing, for their stress. This is an absurdity. This is not the classic master-servant relationship in a workplace; this is not an arrangement where, as an employer, you would have a reasonable expectation for the safety issues involving that person. This is extending the net far more widely. The bill will therefore affect a large number of people in all kinds of work. Mr Gentleman makes light of this, and I know he has never been in business; he has always been on someone else’s payroll.
Mr Gentleman: I have.
MR MULCAHY: Well, I am interested to hear that, and I will be enlightened to hear what the experience is. In fact, if he has been in business, he would understand these provisions raise complex issues for employers engaging contractors, not just in construction areas but across the spectrum. Aside from the onerous obligations, this bill also has several other problems.
Section 218 allows for private prosecutions to be conducted by unions for offences under division 3.2 of the bill or other offences which are prescribed by the yet-to-be-seen regulations. Dr Foskey appeared to express some reservations on that. I was not entirely clear of her position, but it seems to be one of concern. Mr Stefaniak certainly flagged concerns on this. This is a departure from the standard situation for criminal prosecutions, which are generally conducted by the Director of Public Prosecutions on behalf of the government. I am open to general arguments about the merits of private prosecutions, but I think that, where an exception clause is drafted allowing unions to conduct private prosecutions completely in isolation from any broader government policy on the issue, we are making a special exception that is without merit.
It is a testimony to the power of the trade unions in this country and, in particular, their power over the Labor Party that they are able to extract special privileges of this kind from the ACT government. Small businesses in the ACT are going to be seriously affected by this legislation. I said to my staff earlier that a lot of people in small business—
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . . PDF . . . .