Parliament Updates

Zali Steggall MP speaks on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

29 November 2023


These amendments are important, because, after extensive consultation with businesses in Warringah and broader organisations such as COSBOA and the Business Council, briefings with the unions and liaising with small businesses and local chambers of commerce, I know there is an incredibly high level of concern at the overreach of this legislation. No-one has disputed, throughout the course of this debate around all the amendments, that some of the intent is genuine. But, in relation to much of these amendments, I feel that it's a sledgehammer being taken to a whole area rather than being more specific, in particular in relation to the definition and the issue of casual employment. I'm sure the minister would be aware of this, but it came as quite a surprise to me just how many different definitions of small business we have in Commonwealth legislation. He's nodding his head, so I'm sure he knows. We currently have 12 different definitions of small businesses across Commonwealth legislation. So it's very important to know that, when we start to think of provisions such as those in this legislation that apply differently for small business and big business, some businesses won't even know under which piece of legislation they are considered a small business and under which they are considered a larger business. That becomes incredibly important when we have questions of compliance and serious consequences.

The amendments that I have moved reverse some of the changes proposed in relation to casual employment, in particular because, under this legislation, the proposal is that there will be a conversion after 12 months for a small business but six months for a larger business. The amendment that I have moved restores the conversion to 12 months for all businesses instead of six months for some because of the very problem of so many different definitions of small businesses. Another amendment removes this new definition of casual. Another amendment removes the firm advancement commitment of continuing or ongoing work as a grounds of conversion and introduces the right for conversion to be refused where the role will not be necessary and/or will be significantly changed within the following 12 months. This is incredibly important. Where, for example, retail stores may be intended to be shut or there might be a restructure planned, the loss of that flexibility for businesses will be incredibly important, and it's important that businesses are able to argue against conversion of a casual employee to a permanent employee on the basis that there are likely to be significant changes within the next 12 months.

As I noted in my speech on this bill several weeks ago, the change to the definition of 'casual' and the related provisions cause a lot of uncertainty for business in the government's original bill. It will introduce a degree of rigidity into the employment environment, which is highly likely to have unintended consequences and see businesses more reluctant to hire additional casuals when we are already facing significant headwinds in our economy, and they are likely to carry through to 2024. I note the comments of the minister in relation to different views on these issues, but I think it is important to note that, whilst there has been consultation on this bill, there hasn't really been an assessment as to its likely impact or real workshopping to iron out those unintended consequences. So I'm concerned that the government's original bill, without these amendments, doesn't contain a sufficient degree of flexibility for employers and employees, and accordingly some businesses will suffer. It is a sledgehammer approach.

In particular, casual work is key for many workers, including students and parents who want flexibility, some regularly. It provides for higher take-home pay, with an average of 25 per cent loading. For so many young Australians getting their first job, learning to work and gaining key employability skills—I really want to emphasise that point—casual work is an entry point and is incredibly important, particularly for small businesses in hospitality and retail navigating uncertainty and changing conditions.

It's incredibly important that small businesses be able to continue having that flexibility of casuals, but with that flexibility is often a regular agreement as to what days and hours a person will work. If I take the example of a parent, they do want to know that they are going to work on a casual basis of Monday, Wednesday and Friday because those are the days they have child care organised, for example. But, if there are changes to their provisions or child care, they want to also be able to change those agreements of days of work, and so losing that flexibility is incredibly difficult and, I think, dangerous for small businesses but also for the people looking to work in an environment that works for them. I would argue the current definition works. It's clear and reliable for both employees and employers. Complicating the definition as the government proposes will only cause confusion.

In relation to the firm advance commitment aspect of continuing or ongoing work as grounds for conversion, it makes no real difference, as you cannot provide an advance commitment, which means you cannot give a casual worker a roster. Again, it's more uncertainty and more confusion from the rules that are already there. It's that complexity that so many businesses are really objecting to. In difficult economic times, the government should be focusing on making things simpler to really assist when it comes to the cost-of-living crisis and giving businesses that certainty. The key message I hear from businesses in Warringah and around the country is that more red tape, more confusion and more complicated legislative changes are just making it harder for them. So I would urge the government to consider these amendments—if not in this place, then in the other place—to make things much simpler for small businesses and keep flexibility in the system.


(Minister's Remarks)

I thank the minister for those clarifications in response, but I would argue that you've actually just proved the very point that I was making—that you're taking a sledgehammer to particular problems by making it so far-reaching in relation to many, many more businesses. You're taking a couple of instances that had broad reach, but, because of where your definition of 'small business' lies and because of the broad application of the change that you're making, the only real defence you're providing is that there will be an interpretation around the reasonableness and 'advanced roster' that would be sufficient to prevent this legislation impacting a much greater number of businesses than you appear to intend. That's where the argument is—this is not fine-tuned enough for the very particular cases of bad actors that you are attempting to deal with. But, ultimately, the court interpreted the legalities and stood by the terms of the contract by which that employment was governed. I think there is merit in that interpretation, even though it was not the one that, maybe, this side of government would have preferred. At the end of the day, the problem I have—and, I think, many of my colleagues have with this legislation—is that, in attempting to deal with a particular issue, this is going to have a much broader impact.