Independent senator Rex Patrick has proposed splitting the industrial relations omnibus bill to break a looming deadlock in the upper house over the Coalition’s workplace reforms.
Patrick said attorney general Christian Porter’s aim of passing the bill as one package was likely to fail, given Labor’s opposition and crossbench concerns. He suggested Porter consider making it five separate bills instead.
The proposal comes as the crossbench stiffens its opposition, with Jacqui Lambie warning the bill encouraged casualisation and would make it harder for long-term casuals to access entitlements.
The omnibus bill deals with five distinct issues: casual employment, award flexibility, bargaining between employers and employees, pay deals for new worksites, and enforcement, including the criminalisation of wage theft.
Given Labor and the Greens oppose the package, its passage would require three of five Senate crossbench votes. Patrick, Lambie, Centre Alliance’s Stirling Griff and even One Nation, which controls two Senate votes, have all expressed concerns about the bill.
The most contentious element is a new track for the Fair Work Commission to approve pay deals that do not meet the better off overall test for Covid-19 affected businesses, which Labor, the Greens, unions, and academic experts warn will lead to pay cuts.
But there is also widespread concern about casualisation. The bill contains a right to request conversion to permanent work after 12 months as a casual, but the provision would be unenforceable. It includes measures to prevent misclassified casuals claiming backpay. The Attorney General’s Department estimates employers could be liable for up to $39bn if the current interpretation stands.
Lambie said it was “ironic that proposed changes to something called the ‘better off overall test’ could be leaving some people worse off overall”.
“Let’s be honest – I’ve got concerns,” Lambie told Guardian Australia.
“There are more casual workers than ever. I am not convinced this bill is helping long-term casuals access the entitlements they deserve. If it is encouraging casualisation, and leaving casual workers open to more exploitation, I’ll be looking at it very carefully.”
Patrick is also concerned there is no right to arbitration if an employer refuses a casual’s request for permanent work.
Griff said Centre Alliance had issues with both components of the bill that allowed “the excuse of Covid” to change work patterns – including the changes to circumvent the better off overall test and expanded flexibility to change the location and duties of work.
“Other than Victoria, the Australian economy has bounced back well – so do we need these powers for the next two years?” he said.
Earlier in February, One Nation’s Malcolm Roberts said the government had a “long way to go” to win his party’s support, but declined to nominate specific amendments.
Patrick said that all five of the bill’s constituent parts were complex issues. “Christian Porter has a lot of work ahead of him to get three of the five crossbench senators across the line,” he told Guardian Australia. “Agreeing on everything … will be difficult. It may be a much more easily managed proposition for the attorney general to break the bill up.”
Employer groups have submitted to the Senate inquiry that the bill should be passed, but some, such as the Master Builders Association, have said their support is contingent on the bill remaining intact as an “overall package”.
Patrick acknowledged that Porter’s intent was to achieve “some sense of balance” by including some provisions that unions didn’t like and some businesses didn’t like.
“But Labor has said they won’t support it. The strategy of pros and cons for all parties may not have worked – which gives further fuel to approach each limb individually.”
Porter admitted on Thursday there was widespread opposition to the clause allowing workers on pay deals to be worse off overall if a majority of employees agreed and the Fair Work Commission deemed it not against the public interest.
Porter said the provision was “meant to extend” the existing “exceptional circumstances provision” to the Covid-19 crisis.
However, the new clause only requires the commission to consider it “appropriate” in all the circumstances to approve a pay deal that does not leave workers better off compared with the award. There is no requirement of “exceptional circumstances”.
“It certainly is featuring in the debate a fair amount,” Porter told Sky News.
“I’m negotiating with the crossbench, and I’m not pretending it hasn’t been raised. There is enormous enthusiasm [among the crossbench] for some parts of the bill, but not for others. This is something we’re discussing at the moment.”
In its submission to the Senate inquiry, the Attorney General’s Department claimed businesses would only be able to cut pay in the event of “adverse” impacts from Covid-19 and it was intended that a “sizeable” majority of employees would have to vote in favour.
Neither safeguard appears in the bill or its explanatory memorandum. The attorney general and his department did not respond to questions about why they were not included and whether they would be added.