Parliament Updates

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

15 November 2023



I rise to speak to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. I should say that the title is a little misleading. To say 'closing loopholes' ignores the broader range and scope of this legislation amendment. It is, in essence, the second omnibus industrial relations change legislation put forward by the government. It is concerning that in a time of stress on business and uncertainty in the industrial relations space the government is introducing a significant amount of change. We know that for small businesses, in particular, increased amounts of red tape, administrative processes and compliance is incredibly difficult. It really adds to operational costs and puts many small businesses at risk. This legislation is an omnibus bill. It proposes a huge number of changes across the industrial relations sphere. 
The key changes include changes to the definition of 'casual worker' and changes to the definition of what constitutes a contractor. It makes intentional wage theft a criminal offence and further empowers the Fair Work Commission 110 HOUSE OF REPRESENTATIVES Wednesday, 15 November 2023 CHAMBER to set standards across parts of the gig economy. It introduces reforms to the test for claiming post-traumatic stress disorder so that Federal Police, ambulance officers, emergency services, communications officers and firefighters can claim entitlements for post-traumatic stress disorder without first having to prove that they have acquired the disorder from their job. This is a non-contentious inclusion that should be passed quite separately, and I will come to that. It proposes protection for victims of domestic violence from being discriminated against in the workplace by their employers. Again, that's very non-contentious and should be passed separately. The bill proposes protection of redundancy payments for workers who might be working for a larger business where the business has technically become a small business due to insolvency. 
This is slightly more technical but, again, fairly straightforward and shouldn't be caught up in the omnibus aspect of this legislation. It proposes recognition of silicosis so that it is dealt with in the same way as asbestos under the Asbestos Safety and Eradication Agency and includes coordination on silica safety and silica related diseases. Again, I believe this one would have the support of the House. It is incredibly needed and, again, it raises that question of why such important and fairly urgent pieces of amending legislation are being caught up and put in this omnibus style of legislation. I am concerned that this is a bit of a trend by the Albanese government across a few sectors, and I anticipate that there is more proposed legislation of this nature, where quite disjointed and different issues are all pulled into one piece of legislation, to come. I believe it's in the hope of wedging those who have issues with certain areas of substance in the proposed legislation, because if you're unhappy with one part you're then caught up in whether you should be supporting another. It's really just playing politics instead of looking at the merits of the proposed legislation and particular elements of it. 
I should say that it's been disappointing this week that the government had the opportunity to deal with those four more urgent aspects of the bill that have support across this place and were passed in the other place and came back here for consideration. But the government preferred, ultimately, to play games on those areas of the bill. So, where fairly urgent financial assistance could have gone to first responders and victims of domestic violence and payments could have been in effect from 1 January 2024, they instead will be held up by the remainder of this bill. The government's stated aims in relation to this omnibus bill are clear enough—to close current loopholes in the Australian industrial relations landscape that can allow for exploitation or even harm of employees. There's no dispute that the system is far from perfect and that there are areas of concern that do need dealing with. 
But what can be seen in this bill is the taking up of a sledgehammer where taking a hammer to a nail probably would have been enough. It is the overreach in relation to some of the provisions that is causing the greatest concern. The stated purposes are noble aims, and many in this place can agree with them in principle. We absolutely want to see fair employment and pay conditions and we certainly should never see the stealing of wages from employees. These are provisions that are long overdue. There's no doubt that reform of the gig economy is needed, but how it is done matters because we do need to make sure we maintain the flexibility and the ability to have a dynamic business and industrial relations environment so that our businesses are competitive. It is a global marketplace. We see that across many sectors for businesses of all sizes, and unless they can be competitive they will ultimately pay a price. I have urged during briefings, and I would urge the government, to tackle these issues one at a time, individually, so that they can stand, be debated and really be dealt with on their own merits. Again, I do feel that this omnibus style of legislation is incredibly disappointing in relation to such an important area, especially when policy changes of such magnitude are stuffed into a large bill which just is not going to bring about the considered policy changes that we should be working on in this place. The bill doesn't pay respect to the stakeholders who want to make real and meaningful change in the industrial relations area, in particular those who do need help sooner. I note the bill has been referred to the Senate Education and Employment Legislation Committee. 
The committee's report is due in February 2024, so I do have a procedural complaint with the government—that is, it is requiring the bill to pass through this place when we know that it's not the final form this bill will take. So, essentially, following the inquiry, there will be amendments and there will be movement, but, rather than us having the opportunity to consider a bill in a more final stage, it is a process of pushing it through here. It will get amended, and we don't have the benefit of the findings or of any of the recommendations that will be made by that committee. I do have concerns about the current drafting of the bill and the impacts it will have on many Australians, employers and employees alike. In particular, the definition of 'casual employee'. The definition of 'casual' and the related provisions introduce a degree of rigidity into the employment environment which may well have unintended consequences. Small- and medium-sized businesses, because of their size, are particularly vulnerable to market fluctuations, and they need to be nimble. As a result, they need a significant degree of flexibility in their staffing arrangements. 
So I'm concerned, and the feedback I have received is of grave concern, around the proposed Wednesday, 15 November 2023 HOUSE OF REPRESENTATIVES 111 CHAMBER amendments, that they don't contain a sufficient degree of flexibility for either of those, employers or employees, and, accordingly, some of those businesses may well suffer. The rigidity also affects the question of whether workers are independent contractors or employees. The economy, particularly the building and construction industry that many in this place have talked about and is quite prevalent in many of our communities, already faces significant stresses relating to this issue and where the workers can legitimately set themselves up and operate freely and flexibly as independent contractors. Another consequence of this reduction in flexibility may well be the risk of businesses knowingly shrinking their workforce in an attempt to ensure that they do not fall foul of these more rigid work arrangements. So what is proposed may well discourage the engagement of casual workers, and that, I think, would be a really disappointing consequence to industrial relations changes. Similarly, employees of such businesses are often attracted to working for them for the reasons of flexibility and responsiveness of those employers to their particular situations and needs. 
If that is lost, again, that is not good thing. Warringah constituents are concerned that this change to the definition of 'casual worker' is likely to result in very negative consequences and not ones that I think add to the benefit of the sector. I would say Warringah is an electorate like many others in the country where there are a number of small businesses, and they boast an entrepreneurial spirit amongst many of its residents. All too often in small businesses it is the small-business owners that underpay themselves to ensure the viability of their businesses. Whilst we've dealt with other legislation to assist small businesses, recognising the challenge they are under, we then have this type of legislation that's likely to make their trading circumstances all the more difficult. The feedback from small businesses is the uncertainty. The changes that continually occur, the increased requirements and the administrative aspect—it is incredibly difficult for them, as small workforces, to be able to cope with the constant changes in an environment where they're feeling immense stress from the aftermath of COVID, where they've often incurred increased borrowings to stay afloat, have delayed rents which are now due and have increased, have increased operating costs and reduced consumer confidence in too many situations and have staff and labour shortages. 
So small businesses in Warringah are constantly telling me they don't need a more complex business environment in which to operate, and this bill does do that on a number of fronts. The gig economy—we hear a lot about the reasoning for the government in relation to the changes proposed. It is a key aspect and a key area of justification, and there's often the latching on to incredibly dramatic and sad events and accidents that have occurred. But there's a real difference between looking at safety when it's on road safety and the link that is claimed in relation to pay. The feedback that I've had from various stakeholders is that it's good in part and that they do welcome minimum standards for gig work; it's a good thing—from Uber to DoorDash, they've expressed such sentiments. But there are concerns within the industry, and those concerns include the scope of the terms and conditions that could potentially be included in minimum standards orders remaining way too broad, leading to significant uncertainty for platforms and to flow-on impacts for gig workers, consumers and businesses. The government could assist by providing much greater clarity and direction as to minimum standard orders and what would be expected of industry participants on this front. There are complex questions that need addressing for parts of the gig economy that deal with care workers. 
Companies such as Mable, an online platform that connects Australians looking for disability and aged-care support with independent support workers, are on the record as saying that the proposed reforms would drive up costs for the National Disability Insurance Scheme and cause workers to quit the platform. So, at a time when we have staff shortages in these key areas—in particular, in regional sectors—it's hard to understand why the government would go down a course to make it more difficult. I appreciate that, on the other side of the argument, recent research from the Australia Institute highlights that care and support gig workers treated as independent contractors are in highly insecure work and without minimum standards. So it's clear that a balance needs to be found, but many are concerned that the balance is not as it's currently found in this legislation, and I would urge the government to consider delay and further consultation to arrive at a better outcome. We do need to make sure that gig workers have safe environments where they are not exploited but are able to maintain the flexibility this sort of employment affords to them. 
I believe that the Fair Work Commission's power to make orders is too wide. For example, it will be able to make orders for a minimum number of hours worked per shift, which might not align with how platforms such as Uber and others may well operate. The government should take the considered feedback on board and further look at how this bill proposes to change the role of the Fair Work Commission. So I have a number of concerns about this omnibus bill as it stands, and I must say I am disappointed with the approach the government has taken in presenting this style of omnibus bill. We were promised better procedure and better conduct than the previous government. Whilst I acknowledge that, in some aspects, things are better, in others 112 HOUSE OF REPRESENTATIVES Wednesday, 15 November 2023 CHAMBER we're seeing much of the same, with really political games being played in relation to very important questions of policy. So I urge the government to take more time to consider complex aspects of policy change and not to overcomplicate the industrial relations sector, because we cannot afford to have small businesses, in particular, overburdened and a system that loses flexibility and dynamism, because it is an incredibly competitive market out there and our businesses need to remain competitive