Tuesday, 17 October 2023
Fair Work Legislation Amendment (Closing Loopholes) Bill 2023; Second Reading
CALDWELL () (): I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 because I come from the Gold Coast, and we are the small business capital of Australia. We are hyperalert to actions by this government that will make running a small or family business harder. When we hear the minister or anyone from Labor describe these changes as 'modest'—a term which has been used in other proposed constitutional changes of late—the hair stands up on the back of my neck. Nothing about this is modest; it is overreach and overcomplicated.
What we see is a government beholden to outside interests. Recently, it was their friends in the Greens who they were happy to bow to on social housing policy. And with this bill, it's quite clear that the unions have them on the hop.
What the government is really doing with this bill is fulfilling a long list of union demands to imprint their full union agenda on Australian businesses. The first point of serious concern is the expanded powers of unions. The bill will amend the Fair Work Act to enable unions to exercise right-of-entry powers without any notice whenever it relates to wage underpayment. To gain immediate entry the union only needs to assert to the Fair Work Commission that it suspects a case of wage underpayment. No actual evidence is required to make that case. The National Farmers Federation is rightly concerned about these new rights of entry without notice which would allow union representatives to enter farms unannounced. For most farmers their workplace is also their family home. The farm is the kids' backyard. There are safety and biosecurity considerations. Union reps should not be able to waltz in unannounced. I think about the cane-farming families in the northern Gold Coast and the fact that they will be sitting ducks for union reps heading down the M1 for a frolic.
We've saw reports in the Daily Telegraph of activists like Thomas Mayo calling on unions to use their right-of-entry rules under the Fair Work Act to push the 'yes' case at job sites. If it was the 'yes' case yesterday, what will it be tomorrow? What will these unions do when they have effectively unchecked access to businesses? What a frightening prospect. For most businesses—and I know this because I have run one—your staff are actually your family. You want them to be looked after and you want them to look after you, so it is often the goal of growing a business to achieve permanent full-time work. But the reaction to this legislation from business owners I have spoken with is that it will be terrible for business. These are business owners that I know very much value their employees. If the threat of a drop-in from a union wasn't enough of a concern, the fear of failing to properly identify the employment status of employees is of serious concern.
The bill, of course, introduces a new definition of 'casual employment' that would replace the existing definition inserted in the Fair Work Act in 2021. The measure is completely unnecessary. The permanent casual loophole has already been closed. All casuals already have the right to convert to permanent status after 12 months if they work regular hours. The government plans to add a new right after six months in addition to the existing system that already allows conversion after 12 months. I am a lawyer by trade, so the reading and interpretation of this kind of thing is something that I am familiar with, but your average business owner is not. How on earth is a business going to interpret a definition that is three pages long and includes 15 factors to determine if an employee is a casual? This involves complexity and inevitably cost that will be passed on for consumers to cover. The 15 factors must all be considered but do not necessarily need to be satisfied. An employee will be casual only if they meet these factors. If not then the business is breaking the law if it tells the employee that they are casual, even if the employee wants to be casual. Quite frankly, you could describe these provisions as tricky, almost designed to force an employer to take the cautious approach because of not wanting to fall foul of the legislation.
The new conversion process itself is eight pages long. The new conversion regime for employees to convert after six months is separate to an existing regime that we know covers it after 12 months, which means we are creating two streams regulating exactly the same thing. It is so complex that the Fair Work Commission will have the power to order businesses from one stream to another. The new six-month conversion right has a test with 11 factors, four sections and seven subsections is in the legislation—just more complexity.
Employers must provide detailed reasons to employees in response to conversion requests. Employers can be exposed to involuntary arbitration by the Fair Work Commission if a worker or a union disputes their decision or their interpretation of the definition. The definition of casual employee will be changed to prohibit anyone from being engaged as a casual if they work regular hours. A court can order that the employee was always not a casual from the time of their engagement. For all of these reasons employers would have no choice but to force workers to move to a permanent role, thereby losing their additional income and choice of hours.
However, casual jobs will not magically be replaced by permanent jobs. Any claim that they will reflects a fundamental misunderstanding of why casual employment is both necessary and legitimate. These changes will in fact embed conflict in the workplace. The legislation will in effect discourage casual employment and make it too risky for some businesses to even consider.
There are some good points—and quite frankly the attacks on our side have been completely disingenuous and politically convenient. Nobody thinks that deliberate underpayment of staff is acceptable. To sit hear listening to speech after speech by those opposite painting my colleagues as wage vandals suits the appalling narrative of this bill. The good points include, for example, initiatives that support victims of domestic violence and emergency workers, which are admirable, but of course they're hidden behind a wall of radical changes. The bill adds the experience of family and domestic violence to the protected attributes for discrimination in employment. We do not oppose including protections for employees who experience family and domestic violence in the existing antidiscrimination provisions of the Fair Work Act. That is good amending legislation.
On first responders, schedule 3 of the bill amends the Safety, Rehabilitation and Compensation Act to introduce a rebuttable presumption that post-traumatic stress disorder suffered by selected first responders was contributed to, to a significant degree, by their employment. The first responders impacted by this change would be, for example, the AFP, firefighters, ambulance officers and paramedics, emergency service communication operators and other emergency services workers.
I want to make special mention of those emergency communications operators, some of whom I know. They're often the unseen sufferers of much trauma and distress in their role. To sit on a phone call while someone is dying, to know that a helicopter can't be dispatched to rescue someone from floodwaters, to hear the harrowing screams of pain—again, it's good amending legislation.
Perhaps we should be separating the bill in relation to wage theft, antidiscrimination laws and changes for the first responders from other parts of the legislation. The government, if it were serious, would remove those provisions from the legislation so that they can be voted on separately from the more radical elements. Maybe, when the Senate has its influence on this bill, moving forward we might see a different approach.
There are so many reasons why this bill is bad for business and for employees. It is impossibly complex. There is way too much uncertainty for both the employers and the employees. As I referred to before, the pages and pages and paragraph after paragraph of definitions that a small business or family business operator will be expected to interpret are, quite frankly, going to drive business to a standstill. By the minister's own admission it is going to add additional costs to businesses, especially small businesses. This will do one thing: it will flow on directly to the cost of goods for households. We know that, at a time when there is a cost-of-living crisis, when mortgages are going up and power prices are rising out of control, this is the last point of pressure that we need on goods and services. Do we need Australians to be paying more during a cost-of-living crisis because of this change and because of this pressure?
The bill is absolutely not going to do anything for productivity, and productivity is what is going to ultimately drive jobs and growth within businesses that will provide future stability for those businesses and provide the platform for people to move from casual to permanent and full-time as and when the business can support it. But productivity is not going to be an outcome from this bill. The bill does nothing to enhance competition. Ultimately, it actually risks jobs. This is where the bill completely misses the mark. When a business now looks at their staffing numbers and their staffing costs and does a risk analysis of whether they will see a benefit from taking the step of wanting to employ a new casual, will they do it or will they question whether the risks are just far too great?
This bill is designed to hand back to the union paymasters of the Labor Party. It is going to institutionalise conflict at an early time—after six months. You've barely got past the idea of liking to work at the place and all of a sudden you've got to make a decision as to whether you want to take on a permanent position without your choosing. Ultimately, this will deliver union officials into the backyards of mums and dads, onto their farms and through the front doors of their business without any notice and without any care. The government has said that it has made concessions for business, but it hasn't. I can't find them. I can't see them. Ultimately, what this legislation does is make a bad situation worse.
Interestingly, my colleague the member for Farrer pointed out that the definition of the term 'loophole' is 'a small slit style hole in the wall of a fortress or castle that would enable archers to simultaneously be defended by the wall against enemy attacks while also being able to see and shoot arrows in attack'. This legislation really is about perspective. The Minister for the NDIS for example and no doubt the minister who put up this bill have one perspective, but it's quite disagreeable to me. My perspective is this: unlike the balance available to the archers, the impact of these radical and extreme measures will leave businesses and employees defenceless against the regime of the unions and of this government.
I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. As my colleagues have said in support of this bill, it was Labor that introduced enterprise bargaining, outlawed sex discrimination in the workplace, passed the Fair Work Act and removed the WorkChoices program. Labor passed the secure jobs better pay legislation. Labor governments continue to enshrine safe and fair working conditions in industrial relations policy, and that's what this legislation will continue to build on.
The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 is primarily focused on delivering fairer and safer workplaces. It provides employers with clarity about the government's expectations. When it comes to business practice and relationships with workers and contractors, it may well be the most meaningful piece of industrial relations legislation in a generation. It is landmark legislation that encourages an ethical and moral workplace culture which has the people at its heart whilst also protecting the economic interests of the business. We are properly defining 'casual employment' so casual workers aren't being exploited. We are helping casual employees that want to become permanent employees, want to make that transition. This will give financial security and leave entitlements to those who work regular hours. There is also no net cost to the business. The business either pays the casual loading for casual workers or pays the leave entitlements to permanent employees. It is one or the other, not both.
The new definition of 'casual employment' will clarify what was always intended as casual employment—that is, if you are working regular and predictable hours and you want to be permanent, you'll have that pathway available to you. On that: when I was working on a call centre 30-odd years ago, every one of us telephone operators were casual employees. Some of the workers had been there for 15 to 20 years at the time. For some, the casual work suited them, but others of us would have preferred permanent jobs. There were young people there—like me—trying to save for their first home, for example, but they couldn't get a home loan due to the nature of this casual work, despite the fact that we'd been at this workplace for years with regular and predictable hours. At this time during the nineties, it was a bit difficult to get a permanent job elsewhere, because unemployment was at an all-time high. I remember it well because I tried to get a permanent job myself at the time but there wasn't much out there. So I stayed at this casual job because it was better than nothing at all, and I had to pay rent and bills. I would have loved to have had the choice to go permanent, though, and I wasn't the only one in that workplace.
These laws are going to strengthen the current workplace relations framework to provide certainty and fairness and level the playing field for both businesses and workers. This legislation improves the rights of gig economy workers. A lot of gig economy workers like flexible arrangements, and we're not going to them into employees. What we're doing is protecting them from exploitation by setting minimum standards for employee-like workers. We're cracking down on the labour hire loopholes that are used to undercut pay and conditions. That's right: just because someone is in the gig economy, it does not mean that they should receive less pay than they would if they were an employee.
This bill criminalises wage theft—and it is theft. It amends the Fair Work Act 2009 to introduce a criminal offence for unintentional underpayment of employees' wages and increases civil penalties for underpayment breaches. For years, the Liberals and Nationals have sat in this parliament and done absolutely nothing to stop vulnerable workers from being exploited. We on this side are making sure that workers aren't being ripped off, and this is so important right now. We are in the middle of a cost-of-living crisis and we need to protect people from exploitation. A large proportion of workers in my electorate of Aston work in healthcare services, light industry, chemical production, food manufacturing and retail. These industries, like many others, stand only to benefit from this legislation. Those opposite do not support this legislation. For years, the Liberals and Nationals have been in denial that wage theft even exists. When they finally introduced legislation as the previous government, they failed miserably as they voted against their own legislation in the Senate. They tore up their own drafts because they don't understand what workers want. They don't understand what it feels like when a single mum working casual shifts is told not to return to work the next day.
Those opposite do not understand what exploitation is, but we do. Some of us have even lived it. We know that the vast majority of employers in Australia do not want to do the wrong thing. We know that the majority of Australians are honest and value hard work. But there are some powerful businesses who knowingly exploit workers, and they should face the harshest penalties. that is what this legislation is about. It breaks my heart that even today we hear about airline workers getting sacked and their work outsourced during COVID and in the middle of a cost-of-living crisis. Those opposite know very well that it is their inaction over a decade that has allowed this exploitation to continue to fester in Australian workplaces, and we will not stand by any longer. This legislation will stop the rotten apples in the sector who are doing the wrong thing. Employers want an even playing field, and that's what these reforms will do because we know that a rotten apple quickly infects its neighbour.
This bill will also expand the functions of the Asbestos Safety and Eradication Agency to include matters relating to respirable crystalline silica and silica related diseases. This would allow the agency to play a central role in coordinating, monitoring and reporting on national efforts to eliminate asbestos and silica related diseases in Australia and to support those affected by these diseases.
Let's be very clear about the impact of this legislation on small businesses. We understand very well the pressures faced by small businesses, and they will not be punished for honest mistakes. There will be pathways to safe haven for small businesses who have tried to correct their mistakes by paying back their employees. In addition, this legislation will allow small franchisees to negotiate fairer and consistent agreements with franchisors. Even in my own electorate of Aston, a large number of franchisees would greatly benefit from this change, and I will continue to fight for the small businesses in my electorate.
We have always been very transparent and firm in our commitment to crack down on labour hire loopholes, to protect vulnerable workers. As the minister has outlined, there has been extensive consultation on the precise design of these measures, including with various business groups. But, most importantly, these measures were part of our election commitments. We went to the Australian people with these commitments at the election in May last year and received overwhelming support, and we are now delivering on our promises.
Labour hire has a legitimate use in providing surge and specialist workforces, and that will continue to be the case. We're concerned about a loophole where companies deliberately undercut the agreements they've already made with their workers. They've agreed on a fair rate of pay with their workers, they've negotiated an enterprise agreement and then they bring in another group of workers, undercutting that agreement by paying those labour hire workers less. That's a loophole. This is delivering on our commitment to same job, same pay. The way it will work is that employees, unions and hosts can apply to the commission for an order that labour hire employees be paid, as a minimum, the same wages in an enterprise agreement. Again, this is something we promised we would do, and we are now delivering.
Those in the union movement and my colleagues on this side of the House come from a proud tradition, stretching back hundreds of years, of building a fairer workplace, fighting for the eight-hour day, providing people with decent pay that can support them and their families, and ensuring safe, secure workplaces.
The Albanese Labor government and the minister for workplace relations understand the unfortunate but growing problem of domestic violence in Australia. Violence doesn't discriminate, and neither should the law. We are providing stronger protections against discrimination and providing workers with access to 10 days of family violence leave. This will actually save lives.
For transport industry and food delivery drivers, we must modernise our industrial laws to recognise the changing nature of work. People like to have delivery to their doors. I know I do. Uber Eats, particularly during COVID, has become a huge thing. I don't think there's anybody here—unless they live in an area where there isn't Uber Eats or something similar—who hasn't often used it. Those drivers are workers, and they should be paid properly. If they had a minimum standard, we could get more of them in Far North Queensland, in places like Yorkeys Knob, in Elmore in regional Victoria, or Winnaleah in north-eastern Tassie because it could be a job that guaranteed a minimum rate of pay. That is what we're talking about—a group of workers who rely on an app for their work. It's a new form of lining up and waiting to be picked: do you have work today? Those workers deserve minimum standards. That is the role of the parliament and what this bill does. It's modernising our laws to reflect the changing nature of work and saying to a predominantly migrant workforce—