The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 is 284 pages long. It’s explanatory memorandum is 521 pages long. I thank the minister for the briefings on what is complex and detailed legislation, but forming a view on this bill is far from straightforward or simple, despite what the minister may say, and ironically, in closing loopholes, one must be alive to new pitfalls.
Parts of the bill intend to close loopholes in working conditions that some businesses and employers exploit, to the detriment of workers. These can mean underpayment, unsafe working conditions and insecure work. I support the intent to close those loopholes. I unequivocally do not defend those loopholes. But the law to close them is so complex that, in my consultation with employers and employees alike—farmers, farm workers, small and medium-sized businesses—there is persistent uncertainty and confusion, therefore many reservations remain for me. This bill will impact a lot of people, and it’s really important that we get it right.
I support strong protections and better conditions for workers. In Indi there are more than 11,000 workers in the healthcare and social assistance sectors, more than 7,000 workers in the construction industry and more than 5,000 workers in the accommodation and hospitality industries. In Indi more than 3,000 people work in the retail trade and more than 5,000 people work in the agricultural sector. All of these industries have very high proportions of casual workers and labour hires—employment arrangements targeted by this bill. It’s with these workers and the local people who employ them in mind that I approach this bill. Both groups are my constituents. They all deserve to work in a safe, secure, fair and prosperous workplace.
Before I address the controversial parts of the bill, I want to address the sections that I wholeheartedly support and that I think should be passed without delay. Firstly, I back the provisions which implement presumptive liability for first responders who suffer from post-traumatic stress disorder, PTSD. This means that a person who experiences PTSD and has worked as a police officer, a paramedic, a firefighter or an emergency services communicator can have their employment recognised as a contributing factor to this awful, debilitating mental illness, simplifying the process for receiving compensation and care. Our emergency services are critical to keeping us safe and helping us in our most desperate moments. Local and international evidence is clear that there is often a heavy personal toll for people in these professions, sometimes, sadly, in the form of PTSD, and the onus of linking PTSD to their work should not rest with emergency workers. These provisions of the bill should pass immediately, especially as we’re already in bushfire season.
Secondly, I support the parts of the bill which expand the functions of the Asbestos Safety and Eradication Agency to include matters relating to silica related diseases. Thirdly, I support the parts of the bill which will protect redundancy payments for workers who have been working for a large business that has technically become a small business due to insolvency.
Fourthly and very importantly, I support the domestic and family violence discrimination provisions of the bill. They amend the Fair Work Act to protect employees who have been or continue to be subjected to family and domestic violence from discrimination. This means an employer could not take adverse action against an employee on the basis of family or domestic violence and would prohibit modern awards and enterprise agreements from including any discriminatory terms.
These four important measures in the bill should pass immediately, and I back Senators Pocock and Lambie, my colleagues in the Senate who have introduced private senators’ bills which carve these parts out. Last week, as we know, they passed unanimously in the Senate, and we must do this again in this place. I urge the government to support these bills. But I do say to the government: don’t corner members of the crossbench on this bill. Don’t force us to vote against workplace protections for those experiencing family or domestic violence or against better supports for emergency services workers just because we ask genuine questions and have legitimate concerns about other unrelated parts of this bill. Don’t play these political games. The Australian public deserve much better than this from their parliament.
I now want to address the parts of the bill where I do have concerns. There are five main parts of the bill that I’ll address that are controversial and are causing real anxiety in the communities across Indi, where I’ve been consulting with many, many people. First, the bill changes the definition of ‘casual’ to ensure that it looks at the real substance, practical reality and true nature of the working relationship, not just the contract. Second, the bill provides a new pathway for casual workers to convert to being permanent workers. The aim is help workers find secure, permanent work when they want to. Third, it provides that labour hire workers must be paid at least the minimum rates as per the host employer’s enterprise agreement. These are the ‘same job, same pay’ provisions.
Fourth, the bill aims to improve the working standards for gig workers. It creates a new category of employment called ’employee-like’, which means the Fair Work Commission can set minimum standards to do with things like pay, safety conditions and insurance for workers on digital platforms that provide services like rideshare and food delivery and for the road transport industry. It will also create a new process for dispute resolution for workers who have been deactivated from these platforms. Fifth, the bill changes the definition of ’employer’ and ’employee’ so that these terms are now defined by ascertaining the real substance, practical reality and true nature of the relationship. So it’s not just the written words in a contract that will be looked at to determine if you are an employee or an independent contractor. What your actual work is like, how frequently and how regularly you work, how directed you are in your work—these factors are all looked at.
There are many other parts of the bill that deal with industrial manslaughter, wage theft, rights of union delegates to enter workplaces and much, much more. These parts of the bill need work too, Despite having 15 minutes to speak on this bill, it isn’t nearly enough to address each and every part. This goes to the point that I made at the beginning about how complex this bill is and what close scrutiny it deserves. The act it is amending is even more complex. It is worthy of detailed and diligent scrutiny, and the job of a conscientious legislator is to do that scrutiny, to understand what questions need to be asked and to safeguard against unintended consequences. As an Independent, I review each bill on its merits. I seek to understand deeply the problem and the ways in which we’re trying to solve it. I seek the evidence for the legislative remedy proposed, and I weigh up those factors as best I can with the interests of the people of Indi and the interests of Australia at the forefront of my mind—certainly not the politics of it.
This government has consulted on these measures for many months, and I acknowledge that this process is much improved compared to the ‘secure jobs, better pay’ bill that we tried to work through earlier this year. But, unfortunately, this bill still falls short of giving resolution to the many questions that remain. If I am to support this bill, I need to explain to my constituents how this bill will impact them and assure them that the bill is in their best interests. As it currently stands, I can’t do this with certainty. In my own consultations with many local businesses and with employer groups, there is deep uncertainty about the impact of some aspects of this bill. I thank those groups, which do include the Business Council of Australia, the National Farmers Federation, the Master Builders Association, the Australian Chamber of Commerce and Industry, COSBOA and others, for meeting with me in my office to discuss the complexities. I also thank employee groups like the Australian Council of Trade Unions for meeting with me to explain this bill and what it could mean for workers.
In relation to the new definition of ’employee’, I hear concerns from the construction and building industry that independent contractors may now be classified as an employee with the actual terms of the contract being overridden. The construction and building industry are worried that this new test will create a disincentive and barrier to those who want the control of being their own boss. They need certainty that this will not be the case. In relation to the changes relating to casual employment, I’m concerned that there may be unintended consequences of changing the definition of ‘casuals’ and the creation of a new pathway to convert from casual to permanent. Casuals are an important form of employment. Casual work provides flexibility to many cohorts—students, parents and carers who want to balance their working and non-working lives—and I don’t want to see that option taken away.
I’ve heard from local businesses that they may employ fewer casuals to avoid perceived legal risks that come with new provisions, penalising employers that misrepresent contracts as casual contracts when in fact they’re not. I’ve heard confusion at the creation of a new additional pathway to convert to permanent employment when one already exists in the legislation. I’m thinking about the small and medium-sized hospitality and manufacturing businesses in Wodonga, Wangaratta or Benalla, who may struggle to understand their legal obligations under these new provisions. This bill must be improved so that employers have certainty when they’re hiring a casual and so that this doesn’t come with risks or confusion later down the track.
To the government’s credit, they have responded to some of these concerns by committing to amend the bill to address them, and this is an important step in the right direction. However, I’m yet to see these amendments, other than in media reports, and the government has not said if they’ll be moved in this place or the other place. That leaves me in a difficult position and one where I simply can’t support a bill based on media reports of potential amendments.
On changes to labour hire—the same job, same pay provisions—I’m concerned again that there may be unintended consequences for workers and employers alike that will impact labour hire. Like casuals, labour hire is a legitimate and important component of our employment landscape, especially for the building, agricultural and food-processing industries. Labour hire providers are confused as to whether, under the new provisions, they must ignore their enterprise agreements in favour of host employer agreements or whether they must apply the agreement with the higher standard. There’s also uncertainty about whether ‘same pay’ means bonuses or other incentives or benefits. Importantly, I’ve heard that these new provisions will mean labour hire employers won’t want to negotiate penalties and loadings in their enterprise agreements if they have to pay these same benefits to host employers.
If the government have clear responses to these uncertainties, I implore them to make this clear in the legislation. For example, if it only captures the rate of hourly pay under the enterprise agreement, make this clear. If it doesn’t capture service contractors, make this clear. The government say these provisions are to target large corporations like Qantas, who have behaved totally unethically in undercutting workers, but they need to make sure it’s not impacting on the much smaller businesses that won’t attract the small-business exemption as they have more than 15 employees. Indeed, there are almost 1,500 businesses with between five and 19 employees in Indi. They are very much small businesses, with limited capacity to understand and manage these proposed law changes.
Going now to the provisions of the bill creating new rights for employee-like workers, also known as gig workers, as well as road transport workers, I recognise the need for reform, but builders in my electorate have written to me really worried about these new provisions. They’re worried this bill will capture contractors and subcontractors who’ve worked hard to establish their businesses, build relationships and enjoy the freedom to choose how they operate—freedom which could be taken away with minimum-standards orders. It’s really important that this bill does not stifle the work of service subcontractors, who are vitally important right now as we are building much-needed—desperately needed—homes to address the housing supply crisis.
I’m sorry to say that, at this time, I cannot support the government on this legislation. I genuinely hope it works constructively with the Senate on these issues, to make further amendments that address the many concerns that I and many, many others have raised. In that time, I will continue to engage, in good faith, with those most affected by this bill.