Kylea Tink (North Sydney, Independent) Share this | Hansard source

If there has been an abiding truth in my life, it is that almost anything can be achieved when an individual is driven by a strong work ethic and accepts responsibility for their own actions and when communities unite behind a common purpose to achieve a positive change for society. In this context, then, that it was with deep interest that I seriously reviewed and considered the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 which we find in front of the House today. While I believe there is much to agree with in this bill, as with many reforms on industrial relations I fear there is definitely devil in the detail when it comes to this legislation. I am most concerned about its potential impact on small and medium-sized business across Australia.

Growing up in the 1970s, I witnessed my parents working together in a family small business. They both worked extremely hard. Nothing was ever given freely or taken for granted, yet by striving to always operate a fair ship they were able to not only provide an incredible quality life for me and my siblings but also employ many others along the way, thus helping their families get established and subsequently grow. Fast forwarding to my own work experience, it began in earnest in 1992. I can honestly say I have always understood the importance of striving for a fair balance between employee rights and the needs of an employer or business. As a working woman in the early 2000s, I was fortunate to have an employer who supported my desire to continue to achieve extraordinary highs in my career whilst also being able to have a family. At times it was not easy. It required a level of commitment, patience and understanding on both sides, but inevitably, regardless of the circumstances and challenges, by working together as an employee and an employer we were able to find a way through our challenges. In this context, I am concerned that this bill will weaken that trusted and mutually respectful relationship between employee and employer as the emphasis of responsibility to make something work shifts significantly towards the employer and away from the personal responsibility I believe all employees should maintain.

According to the Australian Bureau of Statistics, any business with under 200 employees is considered a medium-sized business, while those with under 20 employees are considered a small business. By this definition, 98 per cent of businesses in Australia, or over 950,000 employers, are small and medium-sized enterprises. Nearly 70 per cent of small businesses in New South Wales are located in the greater capital city area, with the highest number of small business being found in the Sydney inner city area. Nearly 50 per cent of those are in my seat of North Sydney. Indeed, the area of North Sydney is the third-largest business centre in Australia and is home to organisations as large and as varied as Coca-Cola, Sony, Microsoft, the Sydney Morning Herald and the Nine Entertainment Company and as small as Morgan's cafe in Kirribilli, The Hunted in Cammeray and Lane Cove, and Radiance Hair in Northbridge. In total, there are also more than 2,000 small-sized building and construction businesses in North Sydney and over 660 registered not-for-profits, including Endometriosis Australia, the McGrath Foundation and Landcare Australia.

While the diversity of businesses here cannot be overstated, the reality is that in the last financial year over 90 per cent of them had a turnover of less than $2 million. In fact, 80 per cent of them had a turnover of less than $200,000. In this context, small businesses truly are the backbone of the Australian economy, employing around 45 per cent of all Australians and accounting for approximately 35 per cent of our economic output. What is often true of a small business is that they will not have a dedicated HR professional working for them on a day-to-day basis. Rather, many owner-operators will simply be working as hard as they possibly can to build the most successful business they can to provide not only for their own families but for the families that their employees support.

And herein lies the rub. Looking at the bill before us, it is a large piece of legislation which, if enacted in its entirety, claims to aim to protect worker entitlements, promote gender equality and improve fairness. But, I can't help but wonder about the fact that, while its ambitions may be sincere and admirable, how much of this revised legislation will actually ultimately help make the lives of small- to medium-sized business owners easier.

The bill seeks to drive change via six key undertakings. The first one is clarifying that a breach of the Migration Act would not affect the validity of a worker's employment contract. The second one is increasing the flexibility of unpaid parental leave to 100 days over 24 months, including allowing pregnant employees to take a portion of their unpaid leave in the six weeks prior to the birth of their child, removing restrictions on married and de facto couples taking more than eight weeks unpaid leave at the same time, and allowing each parent to take up to 12 months unpaid parental leave and request an extension of a further 12 months. The third one is to include a right to superannuation in the National Employment Standards. The fourth one is to clarify that the enterprise agreement will not continue to apply when the Fair Work Commission makes a replacement workplace determination in relation to the same employment. The fifth one is to permit employees to authorise employers to make regular deductions for amounts that vary from time to time. The final one is enabling casual employees in the coal mining industry to ensure they are not treated less favourably than permanent employees in terms of calculating and accessing long service leave.

By any measure, this bill is an omnibus. As I mentioned before, while there is much to welcome, I am also concerned about a number of elements that I feel will be particularly difficult for the 98 per cent of businesses I have previously spoken about to not only get their heads around but to actually manage. While I have no issue with either schedule 1 and 4 of this bill, which respectively relate to introducing new provisions in the Fair Work Act to clarify that a migrant worker in Australia is entitled to the benefit of the Fair Work Act regardless of their migration status whilst also facilitating minor amendments to confirm the common understanding of how workplace determinations and enterprise agreements interact, I do have concerns around schedules 2, 3 and 5.

Specifically, schedule 5 makes changes to the flexible nature of unpaid parental leave to make them consistent with the changes made to paid parental leave earlier this year. While these changes are to be welcomed, as someone who has had specific experience in trying to manage the staffing requirements of a small- to medium-sized business, when you have people both wishing to succeed professionally while also wanting to balance family commitments it is imperative that any change introduced here work equally and fairly for both employee and employer. In this context, I believe this legislation would be improved by ensuring there is greater onus placed on the employee to provide as much notice and specificity around their parental leave plans to their employer as soon as is practically possible to allow both the employee and the business to plan to manage workload appropriately. As we are all very aware in this place, we have not seen such a tight employment market in this country for years. With many business now reporting significant delays in terms of time taken to find suitable staff, I fear for small and medium businesses that, while this flexibility will undoubtedly be incredibly good for families, it may, in some circumstances, literally challenge the very viability of a small business going forward. The truth is you cannot simply lose an employee in the space of a month and hope to find a replacement to cover for them for an indefinite period of time in this current market. For this reason, why I applaud the government for thinking big and shooting for the best-case scenario, I would also urge it to consider the very real economic circumstances businesses are currently facing. In doing so, I believe the government would find that there is a need to temper the enthusiasm they have shown in this first iteration of the legislation.

Similarly, given the nature of this reform, I would encourage the government to specifically build in a formal review of the unpaid parental leave provision within the first six months of the implementation of the legislation to ensure government is fully aware of the real-world impact of this change. For any upside delivered by this reform for families, it will all be to no avail if a significant number of small- to medium-sized businesses subsequently fail as families enjoying leave can only return to a healthy employer, and that is the balance we must get right.

In schedule 3 then, my key concern is that yet again we have a piece of legislation that is expanding the responsibilities of the Fair Work Act and, consequently, the commission, with no clear understanding of how this expansion won't just add a additional layer to bureaucracy for businesses. As it currently stands, employees can pursue unpaid superannuation through the Australian Taxation Office, an entity which already has primary responsibility for ensuring compliance with superannuation guarantee and associated obligations. In this way, the ATO already has access to the relevant superannuation information, and it has extensive enforcement powers to effectively address noncompliance. My concern in this instance, then, is that seeking to include superannuation in the National Employment Standards will mean employees covered by the Fair Work Act will now have an additional enforceable right to superannuation through the Fair Work Commission. 'So what,' you might say. Well, as well-meaning as that sounds, as it currently stands, a business could find itself facing a claim from both the ATO and the Fair Work Commission, leaving business unsure of which direction they actually need to be facing.

My concerns in this area again would be overcome should the government be open to considering some amendments to the bill. Those amendments would include ensuring employers are not exposed to competing enforcement activity from two different regulators over the same matter, protecting employers that rely on ATO guidance, limiting the capacity of the ATO to pursue matters aired in the workplace system and limiting the capacity of the Fair Work Commission to deal with disputes over the operation of superannuation legislation. Ultimately, any amendment in this schedule must again seek to get the balance right—a balance where both employee and the employer can be as successful and have a clear pathway to negotiating or finding a suitable solution to a dispute.

Finally, we come to schedule 5, which provides details regarding proposed amendments to the legislation which would allow for amounts, varied from time to time, to be removed from an employee's pay packet without additional approval. In effect, this would mean it would be possible that an employee who may have previously granted approval for a deduction from the salary could quite literally find themselves taking home a smaller pay packet in any given month, with little to no notice regarding the change and no specific safeguard having been in place to ensure that an additional or increased payment didn't simply go through without scrutiny. By removing the requirement for an employee to ultimately stipulate exactly what money they are happy to have removed from their salary and under what circumstances, this legislation is removing the safety barrier that is an employee's right to query a change or an increased price prior to accepting it.

Some will argue that, once given, an approval should be taken for granted regardless of the dollar amount, as long as that deduction is still being acquired for the primary purposes in which the employee originally granted it. But, as someone who is very mindful that there are many out there who are literally counting every cent they earn, I do not believe it is in either the employee or the employer's best interests to cut a blank cheque for anyone. In this context, I believe this legislation should be altered to ensure employees require notification of any price variance by the service provider, be that up or down, and only with specific approval from an employee should that variation to the deduction be possible.

For many years now, Australia has maintained an enviable reputation as the land of the fair go, where people who aspire to create and build a better future for themselves and their families can succeed and were small and medium-size businesses are not just the backbone of our economy but are literally the lifeblood of our communities. For this reason, while, as I've said, there is much in this legislation to aspire to, I finish today by urging the government: please step back. Look at each element of this proposed bill critically to truly assess its potential impact on small to medium-size businesses. Please then come back to us with an amended piece of legislation that will ensure not only that workers can continue to thrive in our country but that they can do so because they continue to be employed by successful, productive small to medium-size enterprises. A big-business approach will not fit all, and it is imperative that this government refrain from trying to make it so.

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