Malcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

As a servant to the people of Queensland and Australia, my Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 was drafted in response to exploitation of casual coalminers in central Queensland and the Hunter Valley. It's since been widened. My bill was referred to the Education and Employment Legislation Committee for inquiry, and I thank the committee for organising a public hearing so miners could testify about their exploitation personally. The committee found there was a need for my bell yet then recommended waiting for the government's version. Labor announced its hollow 'fair work for fair pay' idea back in 2018, four years ago. Labor and the unions campaigned on their bill in the 2019 state election in New South Wales and the 2019 federal election.

The problem is that Labor's bill did not exist. I confirmed that and began drafting my bill in April 2021. Labor's bill was not introduced into parliament until December 2021, a month after my bill was completed and three years after Labor first promised it. If the Labor Party were serious about fixing this issue, their bill would have appeared in 2018, not four years later after One Nation repeatedly called them out.

Labor's bill was a dog's breakfast, so the government has chosen to start over. Now, I accept the government saying it's just started meeting with stakeholders, yet a briefing with the minister's advisers last week revealed that consultation has only been with the companies and union bosses that perpetrated this scandal. The miners, air crew, ground crew and other workers ripped off for tens of millions in wages have not yet been consulted after six months, which of course means the Labor Party, the CFMMEU and the industry are trying to find a way to keep these labour-hire contracts going. I'll explain why in a minute. And so I'm advancing my bill, preparing for a vote early next year. I thank Senator Babet for allowing me to use his bills time today.

Early in my career, I spent three years in the union as an underground coalface miner, including in the Hunter and Queensland. My father was an underground coalface miner, senior executive and later Queensland Chief Inspector of Coal Mines. He was awarded an Order of Australia for eliminating black lung in our state's coal industry. Having completed an honours degree in engineering, I returned to manage coalmines, which involved daily interaction with the CFMEU in the Hunter and in Queensland. This issue is very personal to me because the CFMEU and its predecessor, the Miners Federation, were once strong unions that looked after and served their members. The reports I received in my Senate office in 2019 from Queensland and the Hunter have shocked me. After visiting these areas repeatedly and listening to miners, I was no longer shocked. I am outraged at the injustice.

The big picture is this. Labour hire companies were employing casuals in black coal industry production despite the award not allowing it. It was illegal. Exclusion of casuals extends beyond the black coal industry. It includes airline flight crew and other awards, which I will speak to in a moment. Back to the black coal award. Casuals are excluded for a good reason. Coal mining can be dangerous. It requires training and constant skilling to improve productivity and, most importantly, for safety—safety of an individual miner and safety of the whole mine and everyone in it.

Underground miners typically retire ahead of most other industries, when they can no longer do the physical work. That's why proper unions like the old Miners' Federation negotiated high rates of pay. The modern award is much lower than negotiated rates because it assumes miners can be reskilled and redeployed into other industries after they exit from mining, allowing for a full working life. That's a fairytale. That simply ignores the reality of life in the coal industry. Labour hire contracts are used to cut miners' wages. This represents a 40 per cent cut in wages against the pay a permanent miner earns in a mine's direct employ, doing the same job, side by side. Two Australians working side by side doing the same job on the same shift, and one is getting 40 per cent less than the other. That is wrong.

This has been going on for ten years under the Hunter CFMEU, working with some mining companies and with protection from the local Labor members, Joel Fitzgibbon and now Dan Repacholi. Casual coal workers on labour hire contracts supposedly receive a loading for loss of holiday and sick pay; yet their pay packets are still 40 per cent less. What caused this large reduction in pay was not the absence of loading, because that was supposedly paid. It was the very low base rate that the CFMEU installed.

In 2021 One Nation supported the concept of not enabling workers paid for casual loading because that was paid. What we did was to ensure that workers retained their rights under industrial laws to take legal action for illegal pay rates. Yet the CFMEU then lied, shouting that One Nation stopped workers from getting what was theirs. No, we upheld miners' rights to pay and entitlements while at the same time protecting small business from being forced to pay casual loading twice, as some union bosses dishonestly demanded. It was the union that signed up on these enterprise agreements that robbed workers of 40 per cent of their pay. The Hunter CFMEU pocketed union dues from labour hire casuals and money from labour hire employers for dodgy enterprise agreements with low pay rates. It was the Hunter CFMEU that jointly directed coal long-service leave funds that under-accrued and avoided paying employer contributions to labour hire casuals. I exposed that, and a government review later confirmed me as correct. It was originally a Hunter CFMEU owned labour hire company that collected fees from the mines for supplying labour under a labour hire contract. The CFMEU is clearly directing labour to protect their nice little earner, even at the expense of the workers that the Hunter CFMEU supposedly pretends to represent, while hypocritically and deceitfully speaking badly of casual employment and workers.

The committee report accurately describes the effects on communities of the reduction in local spending due to taking wages out of the community. I was lucky enough to find a lawyer who drew these agreements up on behalf of Hunter labour hire companies and who has since seen the error of his ways. His advice informed my bill. Many exploited workers contributed to my bill. I have the most knowledgeable legal minds on labour hire contracts in the coal industry contributing to my bill, and I have generations of personal experience in the coal industry. What confuses my critics is that I'm not lining the IR club pockets with overly complex wishy-washy nonsense that opens more loopholes than it closes, as Labor's short-lived dog's breakfast did.

My bill will fix this mess. My bill sets an additional provision for Fair Work Australia to require an enterprise agreement to pass before being approved. It allows an employee to appeal an existing enterprise agreement to Fair Work if an enterprise agreement breaches this new provision. The provision is simple: a worker on a labour hire contract must be paid the same rate of pay, including allowances, as a worker who is directly employed doing the same job on the same shift roster. That is clear. If the whole crew is labour hire, then the commissioner must make a judgement on what the rate of pay should have been based on historical information and a comparison with similar mines in similar conditions. That is clear. The cost of using labour hire contractors will now fall on the employer rather than the worker. The intention is to require the employer to project their labour requirements, employ, train and nurture their people—like employers used to.

One complication is that some workers are on day shift and others on rotating shift. My bill takes that into consideration. Clause 3(b) of the bill expressly provides that the roster the employee is working must be considered in the assessment of equal pay for equal work. The committee report correctly identifies when labour hire contracts subvert the black coal mining industry award 2010 and the aircraft cabin crew award 2020. I've circulated an amendment to this bill to include the airline operations ground staff award 2020 which makes provisions for casuals that foreign companies bypass to exploit workers through labour hire contracts. I know Senator Sheldon is leading a fight against that exploitation. My bill will give him the ammunition to drag the whole situation back to Fair Work. I urge Senator Sheldon and Labor to adopt it.

My bill's simplicity will prevent lawyers feasting because it allows Fair Work commissioners discretion to make value judgements. I reckon they're up to it. The remaining awards are excluded in the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 as a line in the sand. While labour hire agreements are not being abused in these industries, explicitly including those awards in this legislation was designed to ensure labour hire firms do not treat these awards as a new profit centre once the opportunity for exploitation is removed from coalmining and aircraft operations.

Witnesses who discussed their treatment under labour hire contracts were pleased to have the opportunity to publicly testify, and I thank the committee. These workers were not always afforded that opportunity. Stuart Bonds, from the Hunter, listed case after case after case where miners have been employed under labour hire agreements with a 40 per cent reduction in pay rate. More troubling were the stories of exploitation and victimisation these workers received, especially following a safety report or physical harm.

Simon Turner testified to the committee on his inhumane experiences as an injured worker. He's one of many, sadly. Workers like Simon tried for years to get justice. The mine owner and the labour hire company completely ignored him—tossed him on the scrap heap. The Hunter CFMMEU betrayed workers. Local Labor MPs let them down. Only when workers came to One Nation was progress made.

Another worker on a labour hire contract saw a safety issue—water trucks laying down too much water, creating slippery conditions—and reported it. This worker was required to report that safety issue. Her contract was terminated the next week. There's no job security in labour hire contract arrangements. Workers injured at work were refused medical treatment and not paid workers compensation or accident pay as legally required. Workers were afraid of reporting safety issues for fear of being sacked.

Workers were rostered two years in advance to work 52 weeks of the year straight—no holidays. If you're working a full-time 12-hour shift and being given these shifts two years ahead then you're not casual. You are a permanent worker. Despite being, in effect, permanent these workers are unable to get home loans, car loans and provide a future for themselves and their families because banks won't lend to casual labour hire employees. When I say exploitation I mean exploitation!

All this happened with the Hunter CFMMEU doing deals enabling mining companies more interested in profits than basic human decency. Labour hire deals and contracts are used to lower wages across an entire industry. Qantas pulled this stunt on their ground crew. They fired thousands of workers and re-employed them through labour hire companies at the lowest rate of pay. What's a worker to do? Refuse the deal and have no job or take the deal and try to get by on 40 per cent less? Qantas are using these tricks on flight crew and pilots as well. Senator Sheldon can speak to this, so I won't. Correct loading on a plane is vital to flight safety and people on the ground.

In my meeting with Qantas, their executives defended their behaviour as being 'necessary to maintain viability'. Qantas have run their staff into the ground, cut staff pay to the bone, moved staff from full-time secure jobs to casual junk jobs, worked staff on shifts with not enough time to recover, provided insufficient training and supervision—and now things are going wrong. What a surprise! And they belted loyal, long-serving employees with COVID injection mandates. One Nation's Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 remains the only legislation before parliament designed to correct this unfair and dishonest corporate behaviour. It should have been in the government's Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, but it's not. Yet it's not too late. Here it is.

I'll now discuss the specific topics in the committee report. Firstly, the bill does not act widely enough. My bill allows the minister to add more than the seven awards this bill currently covers by using a disallowable instrument where exploitation occurs. It allows the minister to remove that listing should an industry stop exploiting. This is surely best practice? Only act where there's a problem, and only for as long as the problem exists. Adding 700-plus awards 'just in case' will needlessly add to the cost and complexity of our industrial relations system.

Secondly, definitions of key concepts. The definitions enabled every submitter to correctly understand my bill's intent, yet some of them went on to say the definitions were incomplete after correctly identifying the meaning of the words used. The wording was chosen carefully because once a term is given a specific meaning, that meaning is considered the term's full meaning. Cunning lawyers use detailed definitions to limit a term's application. This allows for deficiencies in definitions to be exploited as loopholes. I will not play the industrial relations club's game. It's up to the Fair Work Commissioner to decide if a labour hire agreement falls under this bill's provisions. Should the Fair Work Commission fail to honour this legislation's intent, then and only then should we wander into the legal minefield of definitions that become exclusionary rather than inclusionary. It's time to start using clear language expressing clear principles and rely on the Fair work Commissioner to exercise their wisdom and knowledge and to follow these principles in their judgements.

My bill's intention and action: my bill provides a provision to existing provisions that enterprise agreements must pass to meet the Fair Work Commission's approval. This test is in section 321 of the Fair Work Act 2009 to show this equal pay for equal work provision is separate and additional to the better off overall test—the BOOT test. Section 321 is exactly where this provision belongs.

In conclusion, the supposed downside that some vested interests attribute in broad terms comes from the same entities who turned industrial relations into a club for their own profit and power at the workers' expense. These entities do very well from complexity. Workers pay the price in so many ways. This must stop. If the government is serious about equal pay for equal work, get on with it. I thank senators contributing to this debate and look forward to bringing the bill to a vote at the next opportunity.

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

I thank Senator Roberts for his contribution. I would make the observation that if Senator Roberts is serious about trying to improve industrial relations in this country and has some genuine comments and contribution to make, maybe the best way to start is sitting down with that terrific minister, the industrial relations minister, Minister Burke, and start working with him about how we might improve industrial relations in this country, and in particular how we might start the ball rolling on lifting wages so that workers have a chance to compete with rising prices that they see everywhere. Of course we know that it was a design feature of the former government, the former government which Senator Roberts supported over and over and over again, with all of their crazy policies that have led to the extremely difficult economic circumstances which Australian workers find themselves in. Maybe if Senator Roberts hadn't supported the former government as often and consistently and regularly as he did, Australian workers might actually be in a slightly better position.

Of course they're going to be in a lot better position when the new bill passes in the next couple of days, which is going to lift the standard of living of Australia workers and give them a chance to catch up with those rising prices. I see Senator Barbara Pocock in the room. When I first started working with the shop assistants' union in 1976 we still had different rates of pay for men and women. There would be one rate of pay for a man, which would appear on one side of the wage regulated documents. On one side of the page there would be a rate for the men, and on the other side of the page there would be a rate for a woman, for exactly the same job. In this country we had different rates of pay. It's hard to believe, and you have to go back a very long time to see that, but in wage determinations in this country there were differences between men and women.

Of course, we have quite a different concept of equal pay for equal work these days. We're not talking about the overt discrimination that existed in wage determinations in this country for most of the last century. We're talking about quite a different proposition, of course, and that proposition is that there are industries where women predominate and which, if they were fairly valued, would have a higher rate of pay. The reason that the rate of pay isn't higher is that they are predominantly female industries. That's the issue that the Labor Party is seeking to address and will address in the course of this parliament.

I will first talk about what the Labor Party is proposing to do to fix the problems that Senator Roberts claims that he's fixing in this bill—and again I make the offer to Senator Roberts: if you're fair dinkum about trying to lift the living standards of workers in this country, maybe the best way is to cooperate with a government that is also interested in doing that, sitting down and telling us how you think we might be able to advance the interests of working people in this country. I haven't seen any evidence in the whole of the time that you've been in this place, Senator Roberts, that you've been remotely interested in that issue. Every single decision that you took over the previous parliaments to back in the policies of this mob when they were in government did damage to the people you now say—

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

He was the one who looked after mine workers.

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Senator Hanson, I sat quietly and listened to the drivel of the Senator Roberts for the last 15 minutes. I'd just appreciate the same courtesy.

Well, you will have a chance to speak on it, and I will sit quietly while you have your contribution, but the courtesy is that you should listen in silence, and I'm surprised the Deputy President didn't make that remark himself.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Senator Farrell, I thought you were more than capable of handling the matter.

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Oh, thank you.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

You're attacking everyone, Don!

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

I didn't have a go at you, Senator! I'm talking about your government. I wasn't singling you out—

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Here I am. Have a crack!

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

although, now that you mention it, of course, just like Senator Roberts, you voted for every crazy policy that put pressure on working people in this country, and this Labor government is going to do something about it through our fair work bill.

We took a plan to the Australian people at the last election, and that plan was to announce a secure Australian jobs plan which contains a commitment to address getting the same pay for doing the same job. We were onto this issue way before Senator Roberts even dreamed it up, but not only that; we took a policy to the last election to deal with the issue. We had a plan for this very issue that Senator Roberts claims that he's got some interest in. Now, under the Secure Australian Jobs plan, the government committed to delivering more secure jobs, better pay and fairer workplace relations, including ensuring that labour hire workers and workers engaged in other non-standard arrangements such as outsourcing receive no less than directly engaged employees performing the same work. It's a very simple proposition that, if you're doing a job that's valued at a particular rate of pay under an award, agreement or some other instrument, if somebody else comes into your workplace to do the same job, that person should receive the same pay. It's a very, very simple proposition.

Under the previous government, abuses occurred and, even though the government was aware of it and the industrial relations minister was aware of it, nothing was done about it. We recognised the problem, we took a proposal to the Australian people at the last election, and we were elected to government. I would say this, Acting Deputy President—and I know you know a lot about these sorts of issues—we have a mandate to fix this problem. Not only do we have a mandate to fix this problem; we are going to fix this problem.

Honourable senators interjecting—

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Order!

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

Thank you, Acting Deputy President. They keep attacking me, particularly from that end, up there.

Honourable senators interjecting—

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Order at the other end too!

Don Farrell (SA, Australian Labor Party, Minister for Trade and Tourism) Share this | Link to this | Hansard source

We have a mandate. I've just seen Senator Sheldon come into the Senate. He spent a lifetime trying to resolve some of these issues, because he saw firsthand how unfair it is in a workplace where one group of workers, no doubt having the benefit of a union-negotiated agreement, which the fantastic Transport Workers Union would have negotiated for them, and then a whole lot of other workers come in on a lower rate of pay. We're going to do something about this. As I mentioned, Minister Burke is on the job. He's been doing nothing else since he came into this job six months ago but trying to fix the problem and create a fairer workplace.

Currently, under the Fair Work Act—and some people could describe it currently as the 'Unfair Work Act'—a labour hire employee and a directly employed employee may be engaged under different industrial instruments. As Senator Urquhart would know, that's code for a lower rate of pay for somebody coming in as a labour hire employee. I'm sure that over her wonderful career she would have dealt with these types of problems and, my guess is, successfully sorted them out. But you can't sort them out everywhere. You need industrial relations legislation to do that, and that's what the Labor Party is about. In those circumstances, we've seen workers doing the same job, undertaking the same work, on a vastly different set of wages and conditions. Not only is that unfair; it also creates tensions in the workplace. If people are doing the same job and they're on a different set of terms and conditions, naturally, those people will be dissatisfied.

The government acknowledges that there may be, from time to time, legitimate uses for labour hire, such as instances where employees use labour hire to provide surge capacity or important expertise that is not available within its own workforce. So we're not saying ban all labour hire. But the proposition is that, if you're doing the same job, you should be getting the same rate of pay.

Because of all those distractions, I've not had a chance to address some of the provisions in this bill. I want to do that in the remaining time I have. This bill is targeted at prospective contracts or arrangements entered into by the employer, namely the labour hire employer, with another person, described as the host employer, for a labour hire employee for the labour hire employer to perform work for the host employer.

The first observation the government would make about this proposed legislation is that there is a lack of clarity and practicality regarding the application of equal pay obligations. These include obligations that apply from day one and do not address situations where, for example, a labour hire employee is moving from host to host, and there is only one civil remedy provision, which is drafted in a manner that is not consistent with the way underpayments are ordinarily dealt with under the Fair Work Act. So it's introducing a whole lot of new concepts which are not consistent with the way a worker would ordinarily expect to prosecute a case if they felt they had been disadvantaged as a result of provisions in their workplace. This is likely to lead to ambiguity, and the bill could give rise to unintended consequences if legislated in this current form.

Again, I make the offer to Senator Roberts: if you are fair dinkum about trying to resolve some of these issues at the workplace, come and sit down at the minister and his staff, and let's start correcting all those issues that arose under the life of the previous government.

The bill is targeted only at labour hire in specific sectors based on award coverage, namely—the Black Coal Mining Industry Award, the Aircraft Cabin Crew Award, the Firefighting Industry Award, the Maritime Offshore Oil and Gas Award, the Seagoing Industry Award, the Australian Nuclear Science and Technology Organisation Enterprise Award, and there is a provision for the minister to add more via a legislative instrument. The bill does not deal with outsourcing or any other arrangements.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

It is my honour to rise and speak on the Fair Work Amendment (Equal Pay for Equal Work) Bill and follow Senator Farrell and Senator Roberts before him. It's interesting listening to is Senator Farrell, who I respect and admire in this place, would you believe, Senator Farrell? He's a thoroughly decent person, Senator Farrell. I always enjoy listening to his contributions.

I wouldn't mind that wine, yes, thank you! I'm deputy chair of the Education and Employment Committee with Senator Sheldon as chair. I want to just say before I make my remarks that I always respect and admire the way that Senator Roberts brings issues to this place and the way that on this inquiry he sincerely brought forward the issues that this bill contends with. I really admire and respect him and I appreciated his contribution, his passion and his commitment to this issue and, indeed, to the workers in that industry. As author and key contributor to the additional comments that were put into the report, while we indicated that we don't support this bill—at least the make-up of it, the particular provisions and how it's been put together—I wanted to say that I very much respect Senator Roberts' long standing connection and commitment to this issue and, indeed, particularly to those working in the black coalmining industry. Senator Roberts worked as an underground worker in the coalmining industry, so he does have firsthand experience and, obviously, through that, he has a very deep connection to not just the issue but, indeed, the people who are connected with it. The witnesses he was able to arrange to come before the committee clearly had a lot of respect for Senator Roberts and they came and presented very passionately their issues. I really appreciated that and appreciated being able to sit, listen and inquire of them.

This bill does primarily focus on the Black Coal Mining Industry Award and the Aircraft Cabin Crew Award 2020, as well as four other awards that currently do not have provisions for casual employment. The coalition does believe that this bill, erroneously, seeks a one-size-fits-all approach. It overlooks the nuances of the labour hire industry. It will have unintended consequences and ignores some of the really important fundamentals, including the desire by some workers to have flexibility and other benefits afforded to them by being labour hire employees. Before coming into this place, I was running an organisation called Generation One, which is an Aboriginal employment agency. Through that organisation, we saw tens of thousands of long-term unemployed Aboriginal people take up training that led to a guaranteed job. It's something that I'm very, very proud of. I hope I can have a similar sort of impact in this place. When I look at the work that I did there through the excellent team that we had there and across the country, it's something I'm very proud of.

We worked a lot with labour hire businesses in creating those opportunities. Sometimes, in this debate, there's a real denigration of labour hire, but it does have a place. It particularly has a place for those who have been unemployed for a long time and who might have significant and multiple barriers to employment. In terms of being able to step out of long-term unemployment and establish a pattern of work, sometimes labour hire provides a unique and flexible environment that enables them to make that transition from having no work and no pattern of work to picking up some casual work, perhaps starting part time or on reduced hours and building their capacity over time. So our organisation was able to use labour hire. We worked with many different businesses—and some of them were subject to this inquiry—that were able to provide a stepping stone for people who had been long-term unemployed with low skills but who, through that transitional intermediary role that labour hire was able to play, were able to transition into longer term sustainable full-time work. So I think it's really important that there is a bit of balance in this debate—a balance that, I know, Senator Roberts did bring into it. We've got to be careful that labour hire isn't denigrated. I respect Senator Farrell's comments that there is a place for labour hire. There is definitely a place for labour hire. I join the concern that it might displace permanent jobs, but there is a place for it and I think we've got to be careful we don't denigrate it.

The Australian coal industry has played a significant role in the modern prosperity of this country and in our economy. Like other sectors of the mining industry, it has provided numerous employment opportunities and benefited regional communities across Australia. The coalmining industry employs around 50,000 workers across Australia with another 120,000 indirect jobs supported by the industry. As a valuable commodity, coal is Australia's second-largest export after iron ore—which is primarily coming out of my home state of Western Australia—and accounts for approximately 11.5 per cent of Australia's total exports. As well as being a strong economic driver and an export commodity, coal is an affordable, reliable source of electricity. While there are detractors of coal in this place, I'm not one to diminish and disrespect the valuable role that coal plays within our industries and our economy and the wealth that it creates. Without doubt, the coal industry has played a pivotal, influential part of the narrative of the Australian success story.

Regarding the role of labour hire, I do respect that there are significantly diverse views on this matter. As I've said, I don't, however, share the sentiments espoused by some who have sought to demonise the vital function played by the labour hire industry. For many businesses—particularly when it comes to shutdown work in the mining sector, when you need a surge capacity or you need to bring in a temporary workforce that can move in and move out—labour hire obviously plays a critical role.

Contrary to representations made in relation to labour hire and proportion of the broader workforce, the current use of labour hire in the Australian workplace is not considered at epidemic level. In fact it's only one per cent of the Australian workforce that are employed within labour hire firms. This proportion is lower than it has ever been, or at least in the last 10 years. In their submission to the EEC, the Australian Industry Group stated that a policy such as equal pay for equal work is unfair, inappropriate and unworkable. Additionally, the AIG contends that the bill does not sufficiently define what a labour hire employer is or what a labour hire employee is, resulting in some businesses inadvertently being caught up by the provisions of this bill.

In the remaining moment I have in this debate I want to pick up on a couple of things that Senator Farrell said. In discussing the government's plans in this area, the government's plans around the fair work bill and the amendments, he said that they have a mandate to do some of the things that they said that they are going to do, that no doubt we'll be debating later today. I find it really interesting that Senator Farrell says that there is that mandate and it was something that they took to the Australian people and got support from the Australian people for it. Granted they did say it was part of their slogan throughout their campaign that they will get wages moving, and lines like that, talking points like that. I absolutely give you that. Australians clearly supported the government. You won; we don't deny that. It's disappointing. I'm disappointed by that result, but it happened and we're living with it right now.

But Labor senators can't say that they have a mandate for the particular provisions of this bill when they actually ruled it out. Mr Chalmers, the now Treasurer, when he was in opposition, when he was the shadow treasurer ahead of the election, was asked in the Insiders program back in November whether or not industrywide bargaining was part of the government's plan. He categorically ruled it out. He said 'We have no plan for that.' Maybe they're just weasel words that members of parliament are very adept at using sometimes. 'We have no plans for this.' Maybe the shadow treasurer, as he was at the time, wasn't in the loop with the government's industrial relations agenda, because he didn't quite know what the then opposition would do if they were to form government and bring in such wide-ranging significant changes to the industrial relations landscape. Or maybe he actually knew that it would be catastrophic to the economy if such a change was brought in. Because he said that they had no plan.

I wish they had stuck to that, because the plans that the government actually had to change the landscape of the industrial relations system are so significant. Bringing in multi-employer bargaining and allowing for anticompetitive natures to be brought into the bargaining system is going to be incredibly troubling to the Australian economy. For example, you've got a situation where you could have Coles and Woolworths having to bargain together in a shopping centre and then rope in all the other smaller retailers that are in that shopping centre, even though those businesses may not have the HR departments, the in-house counsel, the legal advice readily available to them in the same way that a big company like a Coles or a Woolworths might have. These companies could easily be roped in. I see there are some changes to the thresholds that might allow businesses to be excluded—lifting from 15 to 20—but you're not actually a very big business to have 20 employees. All you need to have is a regular pattern of work to be included, so casuals can easily be included. So you can see situations where businesses are going to be caught up in this.

The government don't actually have a mandate on their proposals. They don't have the mandate. Yes, we want to see wages moving. Of course we do. Everyone does. But we can't create a situation where we're actually going to lose jobs. It's better to have a job than not to have one. Your wages are only going to go one way if you've lost your job, and of course that's going to have a devastating impact.

But back to this bill. I again commend Senator Roberts for his commitment and his approach. I look forward to continuing to work with him to find solutions to this problem. Unfortunately, what that lot over there have devised is not the answer. It's not actually going to bring the results that I know you're looking for, Senator Roberts—through you, Chair. But I really hope that we can get ourselves into a position where we can move things. Obviously, what's happening here with this government is going to set us back a long way, but we're going to have to work hard together to bring about sensible ideas and proposals that could really shake things up and shift things around. With that, I thank the Senate for the time and I thank Senator Roberts again for his commitment to this issue.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

or SHELDON () (): I will start off by just thanking all the committee members who considered Senator Roberts's bill, the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022, because it was a collegiate group talking through the pros and cons of the intentions of the bill. There are a number of us on the committee who have a serious concern about what's happening in this country with regard to the misuse of labour hire—not the essence of labour hire, because labour hire does appropriately have a place in the Australian economic market, but not as a means of decreasing wages and ripping people off. All of those discussions—and I include our deputy chair in this—were honest, open and frank discussions, and we also had the questioning of a number of witnesses. I am pleased to say that the Minerals Council of Australia turned up. They were a little bit displeased by having to appear before the Senate inquiry, considering that the mining industry are among the greatest abusers of the use of labour hire, and I'll go to some of those points in a moment.

But one of the things I find particularly disturbing from the opposition is that they haven't changed their tune, because they think there isn't a problem. In fact, when we started raising the issue of 'same job, same pay' many, many years ago, including through the Senate Select Committee on Job Security inquiry, they actually said that job insecurity and the abuse of labour hire in the Australian workforce was a made-up issue. They just can't get their minds around the fact that they have to hold to account those people in our economy who are exploiting Australian workers. So they decided, 'We'll just pretend it doesn't even exist; that way we don't have to pretend that we're taking any side,' whilst they were actually taking the side of big corporations that have been abusing labour hire.

I note some of the statistics that came out of that Senate Select Committee on Job Security inquiry. For example, the number of labour hire jobs in Australia has increased from 540,622 in 2013 to 797,710 in 2019, a 48 per cent increase in six years. The Queensland Coal Mining Board of Inquiry reported that in 1996 94.1 per cent of Queensland coalmine workers were directly employed. Today, just 50 per cent are, with the remainder being labour hire or contractors. BHP confirmed to the Senate Select Committee on Job Security that across their nationwide coal operations—get this—just 29.11 per cent of their staff are BHP employees. The rest are labour hire or contractors.

During the inquiry into this bill, there was also evidence given by Qantas in response to questions on notice that the Qantas Group has 17 subsidiaries that act as employing entities just for some of the areas such as cabin crew; tech crew; engineering; 'below the wing', which is ground handling; fleet presentation and catering; freight; and other frontline roles, which are described as 'above the wing', at airports. They had 21 external companies that they engaged, all in an attempt to artificially break up the bargaining process and the bargaining position of workers—gaming the system. Of course, we'll hear later today what we've heard now from the opposition that this is a made-up issue. We will hear that everything is fine and we don't need to change the IR legislation because—don't worry—Qantas have got the answer. They know how to drive wages down by not following 'same job, same pay' and by gaming the system.

The important thing about the intent of this bill was to look at some of those aspects in some of those industries that it could address. The committee did come to a view that there were some challenges in the bill and that the bill requires, and this question requires, further consultation. But, again, before I get into that, I think we should also make it clear that this isn't just about aviation workers and mine workers; it's other industries. In evidence given during the inquiry into job security over those 18 months in 2021 and before, a meat worker, Matt Journeaux, from the Australasian Meat Industry Employees Union, said:

At ACC there was a worker on labour hire working beside another worker, and there was a $500-a-week difference. We see labour hire companies not even paying the award in a lot of instances. Even if they do pay the award, typically our agreements would be 20 per cent or 30 per cent higher than the award, so those workers, even if they did receive the award rates of pay, would be on 20 per cent to 30 per cent less than what the local worker would be receiving.

This included, of course, the Public Service. There 'wasn't a problem'—the government at the time, the now opposition, were very happy that there was no problem, because they were also paying labour hire workers substantially less than what was being paid to direct hire workers. Rather than giving people a career path and building our Public Service, they just treated labour hire as a cheap form of labour. Hardworking Australians doing their bit for the country were paid by our own government, the opposition now, substantially less.

A labour hire worker from the NDIA said: 'In my office, planners, despite doing the same job, were paid differently. When negotiations for contracts happened, we found out that other staff were being paid up to $10 more per hour. Pay for staff performing exactly the same role is often disparate, and many labour hire agencies prohibit their employees from discussing their pay, making it difficult to ask for parity.' That's one of the reasons why the government now has made it clear that misuse of labour hire is one of the direct policy changes that we're taking action on as we speak.

Nick Thackray is a labour hire worker at the Australian Maritime Safety Authority—another example of misuse of labour hire for an area of expertise critical to maintain, within our national maritime safety. You'd think you would want to make sure that those people belonged and felt connected, but, no, the government at the time, now opposition, didn't give those workers one iota of concern because, don't forget, it was a 'made-up issue'—remember that continual parody from the now opposition, then in government? Nick Thackray from AMSA said in August 2021:

Obviously there's the difference in pay, but then we don't get sick leave, we don't get miscellaneous leave, we don't get carers leave and we don't get things like domestic violence leave. Or if somebody close to you dies, there's no leave like that. So essentially every day, depending on what's happening in your life, you make the choice, 'Am I going to get paid today?'—compared with what else is happening in your life.

As far as the opposition are concerned, these are made-up issues.

The committee went through the issues that were raised in the inquiry into this bill:

The increased use of labour hire, without particular reference to jobs performed or the duration of employment, appear to have blurred the distinction between labour hire employees and those permanently engaged by the host employer. Indeed, it may also be contributing to the underreporting of labour hire employee numbers, with many workers who have been persistently employed by labour hire firms identifying as employees of an industry, rather than a labour hire firm.

After those substantial statistics about the massive increase in labour hire, it also says there is a very strong belief that there is an under-reporting of labour hire within the country. Of course, the committee supports the broad aim of the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022 and ensuring that a labour-hire worker doing the same job as a directly engaged employee receives the same rate of pay, but the committee did recognise that any legislative response must be effective and operate as intended and that this requires further consideration. The committee also acknowledged the significant misgivings expressed by most inquiry participants about the limited scope of the bill and the lack of clarity concerning its key provisions and definitions. Whilst I go to some of the details and concerns about the bill—not the objective of the bill but the details of the bill—I also take into account the concerns that are raised again by those in the community. These aren't made-up people. These are real people giving real evidence. Anne Baker, Mayor of Isaac Regional Council, and Kelly Vea Vea, Deputy Mayor of Isaac Regional Council, said casual labour has always traditionally been engaged in the mining industry but usually for things like shutdown work and construction of new developments. No-one is saying it's not a new concept. What with have seen absolutely in the last 10 years is a huge increase. We've never expected to see casual jobs actually being put in place of permanent jobs. We have seen permanent jobs being made redundant and being replaced with casual labour. That's just something that we've witnessed over the last 10 years. It's not a made up issue. It's an issue of a great deal of concern.

This is why it was so important for the discussion on the bill to take place in the hearings with all those participating members who played a role in the consideration of this bill. Several stakeholders commented on the limited scope of the bill—for example, the ACTU was concerned that businesses could move employees onto contracting arrangements to remove the risk of being covered by the provisions of the bill. It argued that the labour-hire sector will no doubt swiftly evolve language in its contracts to move any employees onto contracting arrangements to greatly limit the risk of ever being captured by the terms of the bill.

I might pause there for a moment. One of the things that's also critically important—and the government has foreshadowed this—is dealing with gig workers. Regulation of one part of the labour market also requires regulation of the other part of the labour market: the gig economy. Then we will see individual contracting where it's inappropriate as way of avoiding responsibility. I think that, over the last three and a half years, many in in place and many outside will have found that I'm a strong supporter of contract labour and the rights of contract labour. This is not about contractors not existing; this is about mechanisms being used to turn around gig work to go to the lowest common denominator. I don't mean the workers are the lowest common denominator; I mean their pay is being used and abused.

Quite often it's not often the company that directly employs—though sometimes it is—but the company right at the top, which I describe as the economic employer, that makes economic demands for those companies down their supply chain to keep taking a section off by ratcheting down wages and conditions. Quite often, safety arrangements lost are lost in parallel. The Australian Nursing and Midwifery Federation noted this would be particularly relevant to carers and nurses working in aged care, who have historically had lower wages than their public and private acute counterparts. The ANMF also expressed significant concerns about the use of digital platforms and independent contractors in the aged-care sector.

Similarly, the employer association for labour hire, the RCSA, warned that some businesses would find ways to circumvent any regulations. The RCSA, the employer group, argued that 'any equal-pay-for-equal-work scheme must consider how it can be applied across all forms of market activity relating to the provision of labour, not just to labour hire structures'. It noted that any regulation 'needs to adequately address the activity and behaviour, not the structure, if it is to have any real impact'.

Again, while I support the concept of this bill, and it's important that the government continues to have conversations about same job, same pay, it also has to be run in parallel with what we do with the gig economy, because that means we actually are properly giving people minimum standards.

Some stakeholders were also concerned about the limited number of modern awards that would initially be covered by the bill. For example, Maurice Blackburn Lawyers argued that the bill offers no protection to workers in parts of the economy where labour hire arrangements are common, including construction, transport, hospitality, cleaning, and aged-care and disability-care services.

In contrast to the concerns about the bill's limited scope, some industry stakeholders raised concerns about the breadth of the proposed requirement for labour hire companies to provide additional payments based on the employee base rate of pay, including incentive allowances, such as overtime, penalty rates and other identifiable amounts. I think it would join many of us—other than the opposition—so we have a very clear position, and I think the intention of Senator Roberts's bill is to encompass those sorts of allowances to make sure that it is same job, same pay. I think there are a number of us in this chamber, including Senator Roberts, who see the importance of those issues being dealt with. (Time expired)

Perin Davey (NSW, National Party, Shadow Minister for Water) Share this | Link to this | Hansard source

I too thank Senator Roberts for bringing forward this bill, the Fair Work Amendment (Equal Pay for Equal Work) Bill 2022. I know that this has been an issue that Senator Roberts has spent a lot of time working on. When I was on the Senate Education and Employment Legislation Committee in the last parliament, I have to commend Senator Roberts for his tenacious questioning of the departments and the agencies that came before us. It was specifically to address—based on what he saw and the advice he got—certain inequalities in some of the awards, particularly the Black Coal Mining Industry Award. I note his interest in superannuation as well. I also note Senator Sheldon's true commitment to same job, same pay, and his ongoing commitment to addressing issues in the gig economy. So I thank Senator Sheldon for his contribution today, too.

I think the key issue is that this bill seeks a one-size-fits-all approach which overlooks the nuances in our labour hire industry that Senator Sheldon himself said has a place in our economy and a significant place in our workforce. We coalition senators note the work of the Senate Select Committee on Job Security and its establishment to inquire into this issue specifically and into the impact of insecure, precarious employment on the economy, wages, social cohesion, and workplace rights and conditions. That was a very wide ranging committee process. I thank everyone who participated in the committee for the comprehensive report that was raised.

There is one thing that I really want to focus on as I address the bill that is before us. While the bill in its current form is specifically applicable to labour hire employees under the Black Coal Mining Industry Award 2020 and the Aircraft Cabin Crew Award 2020, as well as four other awards that currently don't have provisions for casual employment, it also allows the minister to add awards by disallowable instrument as he sees fit. There was a whole chapter in the committee report dedicated to workforce arrangements in agriculture, and I want to focus on that. If this bill goes through as it is, it sets a precedent for a future minister to look at where else labour hire plays a significant role in meeting the needs of that workforce. Agriculture is one of those, as identified in the committee's own report.

The committee heard about the increasing prevalence of labour hire in agricultural industries, specifically in the horticulture and the meat processing industries, which are inherently seasonal in their practice and inherently short term in their labour hire needs. I know blueberry growers who have full-time staff of about five, but during their harvest season—which can come on very rapidly, depending on weather conditions—they can have a call overnight and a need for employing up to 50 people on their farm to help them meet their harvest. You can't just fill those gaps through a SEEK ad or through an ad in the classifieds of the local paper—particularly as we thankfully have an Australian unemployment figure of 3 per cent, which is great news; that means there aren't that many Australians running around seeking employment. But these farmers and meat processors have developed agreements with labour hire companies who have, on their books, a large availability of workforce, and they play a significant role in helping us get the fruit and nuts off the trees, the vegetables off the ground and the meat into the packages.

In 2019 the committee heard that up to 56 per cent of labour carried out in those two industries alone—horticulture and meat processing—was carried out by contractors or other business operators such as labour hire companies. I want to remind people that horticulture is a $15-billion-a-year industry and meat processing is about $17 billion a year. These are not small parts of our economy; they're quite significant.

The Department of Agriculture, Fisheries and Forestry website shows that, in 2021-22, 60,000 to 70,000 people employed in horticulture alone were employed on a contract of some form. Some of these contracts are provided through our Pacific Australian Labour Mobility Scheme, which is a highly successful scheme. It is a two-way diplomatic relationship between Australia and those Pacific nations, with the communities from which that labour has come and the economic support they provide back to their families and their communities. Just yesterday I met with a group of young people from the Pacific Australian Emerging Leaders Summit, run by Micah Australia and the Pacific Conference of Churches. One of those young people was Remwatia Nokite, from Kiribati, and her key message to me was to thank Australia for making provisions under the Pacific Australia Labour Mobility Scheme that her family participates in that provides not only the economic security but also the opportunity for her family members, when they come here, to learn skills that they can then take home and apply when they go home. This is a scheme through which a lot of those visa holders come to us, or come to the end employer, through a labour hire company. My concern with this bill in its current format is it leaves the door open for uncertainty in the labour hire economy.

I also want to raise the issue that, yes, while labour hire is a significant portion of our economy and it plays a strong role in our economy, contrary to some representations we've made in relation to labour hire and the broader workforce it is not at epidemic levels. According to the submission to the committee from the Australian Industry Group, only 1.1 per cent of the workforce is employed by a labour hire firm and this proportion is perhaps lower than it has been over the last 10 years. My point is that labour hire employees fill essential needs gaps across industries, including in the black coal industry, that meet market demand within the workforce.

The other key point I want to make is that there are some employees who actively seek to be employed under a labour hire agreement because it provides them more flexibility than if they were employed under a full-term contract. So we need to ensure that we're not accidentally curtailing the rights of people to be employed under an arrangement that suits them and their families' needs. I do agree that Senator Roberts has seen an area that needs to be addressed, but this is not the solution.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

I thank Senator Roberts for his—

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

Sorry, Senator Pocock, the time for debate has expired.

Barbara Pocock (SA, Australian Greens) Share this | Link to this | Hansard source

No way!

Penny Allman-Payne (Queensland, Australian Greens) Share this | Link to this | Hansard source

My apologies, Senator Pocock.