Dan Repacholi (Hunter, Australian Labor Party) Share this | Hansard source

Fairness and equality is a fundamental human right that we must protect and uphold in our society. Apart from my first speech, there hasn't been an item on the Notice Paper that I have been more excited to see than the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. I've lived and seen firsthand the inequality that labour hire has in a workplace. The growing use of labour hire firms by employers has become a scourge not just in the Hunter but right across Australia. It's a business model that is used by bosses to undercut pay and conditions for workers and it drives a race to the bottom for employers looking to dodge their responsibilities to their workforce. This is really important reform in order to improve the job security, wages and conditions of workers in Australia.

For too long, labour hire employees have been treated like a second-class group of citizens. A lot of them have ended up on long-term labour hire engagements as casual workers for years on end, with no job security and lower wages and conditions than the people working directly alongside them. It's coincided with the erosion of secure employment in favour of casual work and independent contracting. Labour hire is just another form of work which seriously disadvantages employees. Around 80 per cent of labour hire staff in Australia are engaged as casuals, a smaller proportion are engaged as independent contractors and very few of them are engaged as permanent employees. Thirty years ago, most people in a warehouse would have been direct employees of the business that was running it. But it's a different story today. Originally you would have had labour hire being used to meet fluctuations in demand, but what's happening now in workplaces, particularly in the mining sector, is there are fewer directly employed core workforce employees.

Many of the workers in these types of workplaces are now long-term casual labour hire workers. The ramifications for workers are significant. Safety practices suffer as employers uncouple themselves from the responsibility for employee training, leaving workers vulnerable. In the event a worker is injured, the employer's situation is simple: just pick up the phone to the labour hire provider and ask for the worker not to be sent back to the job. For workers without permanency, simple things like establishing a credit record for renting a home, securing a loan or buying a car are near impossible. Workers are left in an employment twilight zone.

When I was working at Mount Thorley Warkworth I would travel to work in a car crew with Gary, Benny, Adam and Benny and Yatesy. Three of us were full-time employees working at the time for Rio Tinto and the other two were labour hire, getting paid up to $30,000 less than what we were for doing the exact same job. We drove to work together every day. We drove home from work together every day. I did the same hours of work as the rest of them, but the difference was they got paid $30,000 less. When they got sent home due to rain, they didn't get paid. Permanent staff remained onsite and got paid. When we took holidays, we got paid. The labour hire guys didn't. When we took sick leave, we got paid. The labour hire guys didn't. How is this fair?

I also worked for seven years with a guy called Graham who had been working for a labour hire company for more than eight years. It took him over eight years to get a full-time gig. That was eight years of his earnings being $30,000 less than the rest of us. That's eight years when that money wasn't being spent locally in the Hunter region in our shops, restaurants, florists, pubs and clubs. It was eight years when Graham's superannuation was worse off than ours. How is that fair? Graham was a fantastic worker. He did everything right and worked as hard as the rest of us but is now far worse off than the rest of us are.

We have seen the pathetic scare campaign run by the Minerals Council about lazy gardeners, but I'm not surprised they resorted to a scare campaign to muddy the waters about this important and necessary reform. It's interesting that they chose not to feature the mining industry in their ads, because mineworkers would have seen right through this rubbish. As a proud member of the Mining and Energy Union, we have invested heavily over many years in trying to change this law to prevent the business model that has seen permanent jobs shrink at the expense of casual labour hire. The groundbreaking wins for in the WorkPac, Skene and Rossato Federal Court matters meant coalminers could no longer lawfully be employed as casuals if the nature of their work was permanent and ongoing. Many current and former casuals also became eligible to claim back-paid entitlements. However, we were all gutted when One Nation backed the Morrison government and bowed to the business demands to overturn these wins, meaning mining companies could continue replacing permanent jobs with lower paid casuals and exploited casuals were denied the compensation that they deserved.

It is only a Labor government that delivers fair work, and this is what this bill will do. Most workers will be unaffected by this bill, but, for those who are affected, this will be life-changing. This bill is simple. It will give powers to the Fair Work Commission to make orders that labour hire employees be paid at least the wages in a host enterprise agreement. Employees, unions and hosts can apply to the commission for an order that labour hire employees be paid at least the wages in a host enterprise agreement. That would mean that the labour hire employees covered by an order of the commission would be entitled to be paid at least what they would receive under the host's enterprise agreement or equivalent public sector determination. Labour hire employers will be required to pay affected employees at least the wages payable underneath the host enterprise agreement for all labour hire employees when covered by an order. Labour hire employers can request information from the host to assist their compliance with this obligation where information is needed to calculate the correct rate of pay, and the host must comply. As an example, a labour hire employee working at BHP's Mount Arthur minesite would be entitled to be paid the same as someone who is directly employed by BHP underneath the EA. Exemptions apply where the host is a small-business employer, and a default three-month exemption period will also apply, to avoid impacting labour hire arrangements for surge work and temporary replacements.

The commission is not required to make an order if it is not fair and reasonable in the circumstances, including where an arrangement relates to the provision of specialist or expert services, like under a services contract. Businesses will be prohibited from taking action to avoid their obligations or prevent a commission order being made. The commission will be a low-cost and effective forum for dispute resolution. Applications can be made to the Fair Work Commission, and from 1 November 2024 the Fair Work Commission orders will become enforceable.

We are standing up for casual workers who want to become permanent employees. We are closing the labour hire loophole that leaves people stuck classified as casuals when they actually work permanent, regular hours. That means that they work just like a permanent employee but don't get any of the benefits of job security. We are legislating a fair, objective definition to determine when an employee can be classified as a casual. This will help more than 850,000 casual workers who have regular work arrangements, giving them greater access to leave entitlements and more financial security if desired. Rent isn't casual. Electricity bills aren't casual. School fees aren't casual. They're all a certainty.

Labour hire has a legitimate use in providing surge and specialist workforces, and that will continue to be the case. What we are concerned about is the labour hire loophole which companies are deliberately using in order to undercut the agreements that they've already made with their workers. They've agreed to a fair rate of pay with their workers, made an enterprise agreement, and then they undercut the agreement by bringing in a labour hire workforce that is being paid less. That's a loophole that we have closed. But these people in insecure work do not have the same certainty about their hours or their income.

The other major elements of the closing-loopholes bill are criminalising wage theft and introducing minimum standards for workers in the gig economy. We announced these policies when we were campaigning for the last election, and we took them to the Australian people. The introduction of this bill follows months of extensive consultation, including with employer groups and unions.

Our government will extend the powers of the Fair Work Commission to include employee-like forms of work, allowing it to better protect people in new forms of work from exploitation and dangerous working conditions. This change will allow the Fair Work Commission to make orders for minimum standards for new forms of work such as gig work. We're not trying to turn people into employees when they don't want to be employees. A whole lot of gig workers like the flexibility from using this technology, and that won't change under these laws.

We know there is a direct link between a low rate of pay and safety. It leads to a situation where workers take risks so they can get more work because they are struggling to make ends meet. We can't continue to have a situation where the 21st-century technology of the gig platforms comes with 19th-century conditions. Just because someone is working in the gig economy shouldn't mean that they end up being paid less than they would be if they were an employee. We don't want to become a nation where you have to rely on tips to make ends meet.

We are also criminalising wage theft. If a worker steals from a cash register, it's a criminal offence. But, in many parts of Australia, if an employer steals from a worker's pay packet, it's not. Employers who intentionally steal from their workers should face criminal penalties. The previous government did nothing to stop the wage theft epidemic. It took the Liberals and Nationals years to even acknowledge that there was a problem. Eventually they did bring in some half-baked legislation, but, when it came to the Senate, they voted against their own legislation. It's something that they are becoming good at. They tore up their own draft laws because they couldn't get enough support for the plans to cut workers' pay and conditions in other ways. They decided to send a clear signal to wage thieves: 'Keep it up. We don't care.'

Business owners who knowingly withhold wages should face the harshest penalties. We must ensure our new laws do not water down any wage theft laws already put in place by the states. The Labor governments in Victoria and Queensland have criminalised wage theft because they got sick of waiting for the previous federal government to act. But Australia also needs a national wage theft system to end the rip-offs. We are determined to deliver on our promise to Australian workers to make wage theft a crime. All of these measures are designed to close loopholes that have undercut secure jobs, better pay and safe workplaces.

These are not radical changes. All we are doing is making the current law work effectively. Closing the labour hire loophole will simply require an employer to pay rates that have already been negotiated and agreed to. These are the rates of pay that are already set for the work being done. Our 'employee-like worker' reforms simply require workers to have some minimum standards benchmarked against existing award rates when they are working in a way which is similar to employees. Our wage theft reform will strengthen the enforcement of existing rates of pay. Most employers out there don't want to be undercut by bad apples doing the wrong thing. These laws will strengthen the current workplace relations framework and provide certainty, fairness and a level playing field for businesses and workers.

I am proud to be a former coalminer. I am bloody proud of my electorate's mining history. I'm proud to be mates with many people who work in the pits. We need jobs that are well paid and secure and aren't dominated by dodgy labour hire arrangements. Put simply, whenever you work, if you are doing the same job as the person next to you, you should be paid the same—same job, same pay; it's simple. That's the difference between us on this side and those that play dress-ups on the other side. We back mining and we back our miners. I wholeheartedly commend this bill to the House.

See this speech in context