Call for Fair Work laws to use superannuation definition of 'employee'
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Call for Fair Work laws to use superannuation definition of 'employee'

Unions will push for the definition of an employee under the Fair Work laws to be expanded to reflect the definition used in superannuation legislation.

Speaking ahead of the ACTU national congress in Brisbane this week, secretary Sally McManus said the nature of work, including the gig economy and franchising business models, has developed in a way that gets around workers' rights.

What constitutes an official employee is up for debate.

What constitutes an official employee is up for debate.

Photo: Michel OSullivan

"Our policy is about updating or renovating our IR laws so they are relevant for today," she said.

Ms McManus said the definition of an employee used in the Superannuation Guarantee (Administration) Act 1992 should be used in the Fair Work Act 2009.

The definition of an employee in superannuation legislation is much broader and includes contract workers. Contractors are not employees entitled to fair pay and conditions under the Fair Work Act.

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The superannuation Guarantee Act also includes as an employee a person who is paid to perform or present any "music, play, dance, entertainment, sport, display or promotional activity or any similar activity involving the exercise of intellectual, artistic, musical, physical or other personal skills".

Ms McManus said it means that if a person gets superannuation they should also get the ten rights provided under the national employment standards and the right to collectively bargain.

ACTU secretary Sally McManus

ACTU secretary Sally McManus

Photo: Alex Ellinghausen

She said it would "take forever" for the common law to regulate the gig economy. The High Court of Australia in Hollis v Vabu ruled that bicycle riders working for a courier company were employees and not contractors because of the level of control the company exercised over them, including their uniforms which presented them as an extension of the company brand.

"We wouldn't want a situation where you go all the way to the High Court which says yes you are an employee, and the very next day the [company] says no more uniforms and you don't have those employee rights again," Ms McManus said.

Ms McManus said labour hire contracting and fixed-term contracts also needed to be addressed to ensure workers were not exploited. She said fixed-term contracts had become more common in universities, schools and health care sector.

"People get one-year contracts that get renewed all the time, so fixing that is a big issue," she said.

A central focus for the ACTU congress would be the need for job security and wages growth across the economy. To this end, the ACTU is continuing to push to extend enterprise bargaining across an entire sector. The OECD recently recognised that countries with sector bargaining had better wage equality.

"We used to have big factories and enterprise bargaining made sense when 100 or 200 people were working there. Now in manufacturing you have shops with 20 people. In that circumstance it is more efficient, for the employers as well, to bargain across a sector rather than individually," Ms McManus said.

While rallying delegates from national unions at the Brisbane conference on Tuesday, McManus said the low level of union membership, which is at 15 per cent,  has created record inequality and record poor wage growth.

She said ordinary families were struggling to pay the bills while record profits were being returned to shareholders.

“Australia needs a strong trade union movement… to turn around inequality," she said. “Right now working people are going backwards.

“People are realising something is very wrong.

"The promise of rising living standards is not happening."

And small businesses know the knock on effects are less spending.

McManus said the Turnbull had "barely mentined" the issue of stagnant wages growth. She said ordinary people lacked the power they needed to demand a pay rise.

“Australians need a pay rise, Australians deserve a pay rise,” she said to applause.

The courts have allowed employers to fairly sack workers who insult non-striking colleagues by calling them scabs, but McManus defended the use of the word during her address saying it was an accurate description of someone’s behaviour.

Former ACTU leaders including Greg Combet, Bill Kelty and Sharan Burrow, the general secretary of the International Trade Union Confederation, also addressed the congress to emphasise the "power of unity" in the trade union movement and to support the campaign to change workplace rules.

Anna Patty is Workplace Editor for The Sydney Morning Herald. She is a former Education Editor, State Political Reporter and Health Reporter. Her reports on inequity in schools funding led to the Gonski reforms and won her national awards. Her coverage of health exposed unnecessary patient deaths at Campbelltown Hospital and led to judicial and parliamentary inquiries. At The Times of London, she exposed flaws in international medical trials.