Tony Zappia (Makin, Australian Labor Party, Shadow Parliamentary Secretary for Manufacturing) Share this | Hansard source

I commend the member for Kingsford Smith for his comments and certainly agree with him that the government's heart is not truly in this bill. In speaking on this legislation, I support the amendments moved by the member for Gorton. The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 not only is long overdue but, as other speakers have said, falls well short of what it should be enacting. In fact, this legislation is like the Turnbull government's recent announcement to abolish 457 visas and replace them with temporary skill shortage visas: it sounded tough at the time, but on close scrutiny it was nothing more than a public relations stunt, more spin than substance. As it turns out, from that announcement only nine per cent of the current visa holders would be excluded under the new arrangements. That is equally the case with this legislation; it is more bark than bite.

Other Labor members who have spoken on this legislation have outlined many of the cases where worker exploitation has occurred, and I do not want to repeat those cases or other examples. They have also talked about the shortfalls of this legislation, and again I do not want to go into the detail of that but may do so at the end if time permits. I want to talk about the issue of vulnerable workers in this country. Vulnerable workers are people who because of their circumstances have no choice but to take on jobs that have no security, poor work conditions and low pay. They are mainly young people, migrants and women. Particularly vulnerable are new arrivals, working holiday-makers, overseas students and temporary work visa holders. Workers who have come from overseas are especially vulnerable, and I want to go to the heart of that point.

In an article posted on 21 April, Tim Colebatch points out that between 2008 and 2016 in net terms the Australian labour market expanded by 474,000 full-time jobs. Of those, only 74,000 went to people born in Australia—that is, roughly three-quarters of the growth in full-time jobs since the global financial crisis have gone to recently arrived migrants, mainly from India and its near neighbours. With respect to the exploitation of migrant workers, new arrivals and students, the perpetrators, sadly, are often people of the same background who bring their country-of-origin work practices here to Australia. Work conditions in overseas countries that years ago were being condemned by Australians are now being exposed right here in our own backyard. The only reason this legislation is before the House is that the level of vulnerable worker exploitation has now reached a crisis point and it is being exposed almost on a daily basis throughout the country. The government had to act.

How and why did Australia, an advanced country that has often led the world in workers' rights, get to this situation? The underlying cause can be attributed to this government and previous conservative governments over the years attacking trade unions and weakening their ability to protect Australian workers. Those attacks culminated in the Howard government's failed Work Choices legislation. Work Choices might have failed but the ideology that drove it is alive and well within government ranks.

Other tactics have been used with the support of this government to exploit workers and deprive them of their rights and of a fair go. The most glaring is the use of so-called self-employed subcontractors. Courier drivers are clear examples, although the practice has now become widespread across many other sectors. Because they are subcontractors they are considered self-employed. They are not paid overtime, they do not have a minimum hourly rate, they do not get holiday or long-service pay, they do not get sick pay or superannuation and they often work very long hours for very low rates of pay. Making people self-employed subcontractors is a legal way of depriving people of their working rights. It implements all of the objectives of Work Choices in one simple move, and that includes shutting out the unions.

What are the workers' options? In most cases there are none when the current job situation is analysed. Currently there are around 750,000 Australians who are unemployed and there are 1.1 million Australians who are underemployed. As of 30 June last year, there were 137,000 working holiday-makers in Australia, 95,000 457 visa holders, 554,000 overseas students—and that figure could even actually be 100,000 higher—30,000 asylum seekers and 4½ thousand seasonal workers. In total there were around 2.1 million people looking for jobs in Australia, not including other holiday-makers or illegal migrants who are also competing for the same scarce jobs. Not only are these people often desperate to get work and willing to work for less than standard labour conditions but also, in turn, they put pressure on people who have jobs to accept very unfair conditions. It is not uncommon for people to work unpaid overtime or work through their meal breaks or at lower rates of pay than they should be paid. The demonising of and attacks on unions in recent years have had a direct correlation with the level of worker exploitation that is being exposed. Successive conservative governments have made it increasingly difficult for unions to ensure that that exploitation does not continue.

Of course, there are other good reasons that it is in the government's own interest to bring in this legislation. The government's budget is in a mess. We heard only a couple of days ago that the deficit for this year will hit $37.6 billion. Gross debt for this budget, as we heard from the Treasurer only yesterday, will hit $649 billion and is going to rise even higher, to some $725 billion, at the end of the decade, in about 2027-28, from memory. The government needs to raise more money, but when workers are underpaid, or are paid cash so as not to report their low payments, the government collects less tax. So it is not in the government's interest to allow worker exploitation to continue at the levels that have been exposed, particularly, as I suspect, as the cases exposed to date represent a minuscule amount of what is really going on with respect to overseas workers.

Most vulnerable workers are shiftworkers and those on the minimum wage. They work shifts or for the lowest wage because they cannot get any other work. If they could, they would. They have no choice for a whole multitude of reasons, but they need a job. They need to pay their bills just like everyone else does and they need to provide food and shelter for themselves and their families. Where was the government when those same workers needed it earlier this year? It was nowhere to be seen. It turned its back on those very vulnerable workers with respect to the penalty rates decision. It did not support Labor's move to protect them. Indeed, it walked away from the workers as quickly as it could, putting the responsibility wholly back on the Fair Work Commission. Where was the government with respect to defending vulnerable workers in the minimum wage case? Again, it was nowhere to be seen. The two categories of workers who are the most vulnerable in this country, when they needed the government's help and needed the government to stand up for them, had the government turn its back on them.

I have spoken in this place previously about the effect of penalty rates. It is a matter that affects so many people around the country today, as other members on this side of the House have spoken about. I will not repeat the speech I gave here only a few weeks ago. What I do know is that even with their penalty rates these are some of the lowest income earners in Australia. These are the very vulnerable people that this legislation seeks to protect, yet when we had an opportunity to ensure through the Fair Work Commission that they did not lose any income as a result of that decision, the government failed to protect them. Yet the government has brought this legislation in, on the pretence that it cares about vulnerable workers.

I turn now to why this legislation falls well short of what it should be doing. Indeed, I suspect it has been drafted deliberately as an attempt that purports to protect vulnerable workers, when it does not. The explanatory memorandum to this bill highlights five dot points with respect to what this legislation seeks to achieve. I will read through them. The first is:

Introducing a higher scale of penalties for 'serious contraventions' of prescribed workplace laws.

I highlight the words 'serious contraventions'. That is a very subjective phrase. It is one that will be open to abuse, and which I am sure that those employers who wish to abuse the system will hide behind when it comes to being penalised or not. The second dot point is:

Increasing penalties for record-keeping failures.

Again, that is pretty wishy-washy at best. The third dot point is:

Making franchisors and holding companies responsible for underpayments by their franchisees or subsidiaries where they knew or ought reasonably to have known of the contraventions …

The words 'where they knew or ought reasonably to have known of the contraventions' give them plenty of latitude for protection against being penalised when they do take advantage of their workers. The fourth dot point is:

Expressly prohibiting employers from unreasonably requiring their employees to make payments …

The word 'unreasonably' could mean anything to whoever wants to interpret it and, again, it will be used by unscrupulous employers to hide behind in order that they do not get penalised under this legislation.

The last dot point talks about 'strengthening the evidence-gathering powers of the Fair Work Ombudsman'. The Fair Work Ombudsman already has plenty of powers. I am not sure what else it needs in order to get to the bottom of some of the exploitation that is taking place. Even then, if you strengthen its powers, what good is that when this legislation provides no additional resources to the Fair Work Ombudsman whatsoever? I cannot see any in the explanatory memorandum. There is no cost attached to this legislation, which implies that there will be no additional resources provided. It seems to me that the first thing that ought to be done if the Fair Work Ombudsman is to be more effective is to ensure that he or she is better resourced—but, again, that is not the case with this legislation.

On the subject of phoenixing, I have had people come to my office on many occasions to raise it with me, and other speakers from this side of the House have talked about it. In instances of phoenixing, vulnerable workers lose out not just by getting paid poorly but, at times, by not getting paid at all as a result of practices of unscrupulous employers.

This was an opportunity for the government, with all of the evidence that is now being provided to it with respect to vulnerable workers being exploited, to do something constructive, truly stand up for those vulnerable workers and bring in legislation that would protect them. But, as we know, the very people who are exploiting these workers are often the people this government seeks to protect in other ways, so they are quite often the people that the government does not particularly want to target. I suspect that this legislation is nothing more than a veneer by a government that wants to be seen to be doing something in order to appease the public outcry that is out there but in its heart, as other speakers on this side of the House have said, is not truly behind what it is purporting to do with the legislation. The amendment moved by the member for Gorton at least tries to do something to fix that. I support it. Yes, this legislation is better than nothing—nobody would deny that—but being better than nothing does not make it as good as it could have been.

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