Monday, 11 September 2023
Fair Work Legislation Amendment (Closing Loopholes) Bill 2023; Second Reading
I rise to support the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. The bill is about fairness. It's about protecting Australian workers from having their pay undercut. It's about closing loopholes, which will make a life-changing difference for the group of workers that will be supported through these changes. These are reasonable changes.
While we all recognise the changes we're seeing in what work can look like, everyone deserves to work in safe conditions and to earn a decent wage. That is a basic and unobjectionable fact. This legislation delivers on a commitment that our government took to the last election. In fact, we announced it as a policy 2½ years ago, and we have remained steadfast in making sure we see these reasonable and practical changes happen. We promised to get wages moving, and to do that we need to close the loopholes that are undermining the wages and conditions of workers. To that end, this bill makes a series of changes, and particularly I want to highlight three elements of the bill: criminalising wage theft, properly defining 'casual work' so casuals aren't being exploited, and making sure gig workers aren't being ripped off.
Since we've come to government, I know the minister has undertaken extensive consultation on the design of these measures. The government has consulted with business groups, unions, employers, small-business representatives, academics and civil society to make sure we are getting the balance right. While we've been doing all this work, those opposite have called this a made-up issue. Once again, they've demonstrated that they don't care—they are prepared to show disdain for workers and the conditions under which Australian workers have to operate. Regardless of what the other side does or says, our government is prepared to stand up for fair rights for workers. That is what we are doing—standing up for fair rights. We are ensuring that loopholes that undermine job security and wages are closed, because that is the fair, reasonable and right thing to do.
There's been some discussion in the community, led by some business groups, attempting to portray the changes that we're making as radical. In fact, these are not radical changes. They are sensible changes that will make a difference for workers and, through them, the families of those workers who have been short-changed by loopholes in the past. Our government is making the current laws work more effectively.
The reforms our government will introduce for gig workers with the passage of this bill will require that workers have some minimum standards, benchmarks, against existing award rates when they are working in a way that is similar to employees.
The wage theft reforms will simply strengthen the enforcement of existing rates of pay. This is a good thing. It's a move that I would think most employers out there would welcome because they don't want to be undercut by the bad apples who are doing the wrong thing.
The government's new definition of casual employment will clarify what was always intended with casual work. If you are working regular and predictable hours and you want to become permanent, that pathway is available to you. These laws will strengthen the current workplace relations system, providing certainty, fairness and a level playing field for workers and for businesses.
As I've said, the bill includes a number of measures, and I don't propose to go through them all at this stage. But I do want to highlight some of them that I know will be of particular interest to people in my community and, I think, to Australians more widely. The first focuses on criminalising wage theft, introducing a criminal offence for the intentional underpayment of employees' wages and certain entitlements, and increasing the penalties for civil underpayment breaches. This will include a new way for a court to calculate penalties with the inclusion of the value of the underpayment option in situations where that value exceeds the available maximum penalty. At the moment, if a worker steals from the till, it's a criminal offence. But, in many parts of Australia, if an employer steals for a worker's pay packet, it's not. That is not a tenable situation. I would think that anyone here or in our communities would agree that that is simply not fair. Employers who intentionally steal from their workers should face criminal penalties.
I am pleased that two state Labor governments, Queensland and my home state of Victoria, have already criminalised wage theft. They had to do that because they got sick of waiting for the previous Liberal government to act. As our government looks to making this change, we are mindful, of course, of not inadvertently watering down those wage theft laws which have already been put in place in the states. But we are doing this, we are making this national change, because Australia needs a national wage theft system to make sure we are ending the rip-offs. If passed, this particular set of changes would commence from 1 January 2025. That would allow time for affected agencies to prepare for the new regime.
On the topic of the previous government, I note that, shamefully, during their nine years in office they did nothing to stop the wage theft epidemic—nothing. It took them years to even get to the stage of acknowledging that there might be a problem with wage theft. Eventually, they brought forward some half-hearted legislation that made it pretty clear that they were not interested. And then, when that got to the Senate, they voted against their own legislation. They took their draft law, they tore it up and they threw it away. They couldn't get enough support for their plans because they didn't make sure that they weren't cutting workers' pay and conditions. This sent a clear message to those people, and I don't think there are many of them, who do do the wrong thing—people who were making wage theft a practice. It said, 'That's okay; the federal government is not going to do anything about that.' The message we are sending is clear—that it's not okay. Workers deserve to be paid, and that is an obvious thing.
We do see wage underpayment continuing to feature in Australian workplaces. Obviously, the people who lose from this are workers, and not just the individuals; it is also workers' families and other dependents. Workers are left out of pocket. As I said before, it also forces businesses that are doing the right thing—those businesses who do follow the law—to compete with businesses that are trying to get an unfair advantage.
I know that many people will have seen media reporting and coverage of cases of wage theft because it has been extensive. This parliament has considered the issue through several inquiries, including the 2022 Senate inquiry into the unlawful underpayment of employees' remuneration. This is a well-canvassed issue. What hasn't been well canvassed previously is the solution, and that's what this government and this legislation is intended to do. This is a government that is focused on supporting Australians and making sure that people are treated reasonably and fairly, that they are safe and that they are earning a decent wage.
Another reform that forms part of this bill relates to the treatment of gig economy workers, also known as employee-like workers. Our government will extend the powers of the Fair Work Commission to include gig forms of work, better protecting people in new forms of work from exploitation and dangerous working conditions. I do accept, as the government does, that the way people work has changed and is changing, that some people do want to work in a flexible way for platforms. The relationships some workers have to employers is different. None of that, however, should be an excuse for poor treatment or underpayment. So under these new laws, the Fair Work Commission will be able to make orders for minimum standards for new forms of work, such as gig work.
Let me be clear: we are not trying to turn people into employees when they don't want to be employees. I do understand that some gig workers like the flexibility from using technology, and this won't change under our laws. But we do know that there is a direct link between low rates of pay and safety that leads to situations where workers may have to take risks so that they can get more work because they're struggling to make ends meet. Just because someone is working in the gig economy, doesn't mean they should end up being paid less than they would if they'd been an employee.
To put it really starkly, in some cases what we see at the moment is 19th century conditions with 21st century technology. It's not working. It's not good for workers or for businesses, and I don't think it's good for consumers either. I don't think the people who also want to take advantage of the flexibility of this type of work through the products they're consuming want the people who are delivering those goods and services to them to be underpaid and exploited. We can all agree that the conditions of work should meet today's standards, should meet basic principles when it comes to what is fair and reasonable treatment and pay. We do not want to become a country where you have to rely on tips to make ends meet. That is not the Australian way.
Gig workers are often engaged as independent contractors, which means under the Fair Work Act they do not receive rights and entitlements. It has been highlighted over time that some of these workers can receive less pay than they would if they were paid under the award safety net, and they have no protections if they lose their work unfairly. So these changes will give the Fair Work Commission a new power to set minimum standards for gig workers performing digital platform work. It will be for the commission to determine if they are mandatory and therefore enforceable with civil penalties or for guidance only. The commission will only be able to set minimum standards for independent contractors who are either performing work as part of the gig economy or have one or more characteristics that are employee-like, such as low bargaining power, low authority over their work or receiving remuneration at or below the rate of comparable employees. The bill will also enable registered organisations representing gig workers to make collective agreements with digital labour platforms.
Another measure that will support gig workers is that they'll have new protections from unfair deactivation if they've been working for a digital labour platform on a regular basis for six months. Under the proposed changes, eligible gig workers would be able to apply to the Fair Work Commission to seek a remedy of reinstatement if they consider their deactivation was unfair. Alongside this change, there will be a new digital labour platform deactivation code that sets out clearly the processes that platforms must follow when deactivating a worker—changes that will support workers and provide clarity for platforms. These are good changes, and they are in fact overdue. It is proposed that these changes would commence from 1 July 2024.
The third reform that forms part of this bill that I want to highlight relates to casual employment. Like the other measures I've spoken about, it's a sensible, commonsense proposal being put forward legislating a fair, objective definition to determine when an employee can be classed as casual. This would close a loophole that currently leaves people stuck as casuals even if in fact they are working permanent, regular hours. It will help to support job security and the benefits that come with that. No-one will be forced to convert from casual to permanent if they don't want to. Some people do in fact prefer to remain casual and to receive the casual loading that comes with that. But for some people there are advantages that come from being a more permanent worker, such as improved access to leave entitlements and more financial security. We know that for many people rent isn't casual. Electricity, gas and water bills aren't casual. Your council rate bill is not casual. School fees aren't casual. Yet for people who are in casual work, the nature of that work can mean they face uncertainty and pressure around meeting a number of those needs.
This measure will not see a net cost on business. Employers will pay a loading if someone is casual and they will pay leave entitlements if someone is permanent; they do not have to pay both. Again, what our government is aiming to do with these changes is to make sure we are supporting workers, we are supporting their families and we are giving them greater certainty. Again, these are reasonable measures that I know will be welcome in the community because people understand that when we treat our workers well, we all do better. That is good for our community as a whole.
So I will end my remarks where I started them: on the issue of fairness. Fairness is a value that Australians care about deeply. It's one of those things we hold up. We are the country of the fair go. Australia is a fair country. It's part of the fabric of what we consider makes up our country. Well, fairness has to extend to how we treat workers in this country. We do know that for too long loopholes in workplaces have meant that some workers have been let down. They have not been treated fairly. Their wages have been undermined, as have their conditions. They have been forced to work in unsafe conditions. Every worker deserves to work in good and safe conditions. Every worker deserves to earn a decent wage. By making the current laws work more effectively, we can support the segment of workers who have been worse off by casual work, by work in the gig economy and by wage theft. That's why parliament needs to support this bill—because it will make a real difference to these workers' lives and because it will mean that our country lives up to that value of fairness that we like to hold up and extends that fairness across our community to all workers. I commend the bill to the House.