David Gillespie (Lyne, National Party) Share this | Hansard source

ESPIE () (): This is a really important bill that we are discussing now, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, as it will take Australian industrial relations, particularly in the small and family business space, back 30 or 40 years. The title is misleading as the bill does much more than close a few loopholes. I know many businesses that will close because this will be too complex and to onerous for many small and family businesses. It will increase union control and increase right of entry and access to many small and family businesses. It will interrupt gig workers and their platforms and other small businesses, such as the traditional agribusiness, the family farm, where the farm is the workplace and also the home, and the growing number of home based businesses who have casual people working. Their homes and little annexes to their houses are basically their workplaces.

It will criminalise innocent mistakes and have them interpreted as wage theft for many small and family businesses. There's gaining of access to workplaces on pretty flimsy grounds, like simply suspecting that there may be underpayment or a so-called redefined permanent with the changing definition of 'casual' leading to underpayment.

There is a redefinition of 'casual employment'. What could possibly go wrong with this? There are 15 factors that have to be considered across three pages of legislation! Employing a casual, for many small businesses, will turn into a regulatory minefield. At the moment, people who are employed on a casual basis and doing the same job and role over a 12-month period have the right to become permanent employees, but these regulations and this legislation will allow it to be done at a six-month interval and it will be forced upon them by the Fair Work Commission. Again, it's a really simple test: only 11 factors, four sections and four subsections! I know lots of the little businesses around my hometown of Port Macquarie and Wauchope will be reading this and thinking: 'Oh, my goodness! This is way too complex. You mean I could go to jail because I inadvertently made some mistakes in 1,200 pages of legislation and subsequent regulations that are going to be added to by another 521 pages?'

I'll tell you what: at Long Flat, a little farm business I know there that employs lots of casual people will be very concerned. They will work on getting family working in their business at a lot of these casual jobs. They won't miraculously think: 'Wow! The Fair Work Commission is now coming into my business. I have been waiting decades for this to happen.' No, they will be saying, 'Oh, my goodness; this is all too hard!' and they'll move on to something else or change or shrink their business or no longer employ people once they get close to the six-month mark. People can't do this anymore.

I know lots of employers that it's already a nightmare for, and this is just going to add to the complexity and the cost of being a person who runs a business. And the smaller it is, the proportion of time that you put into compliance and all the complex regulation—like I said, there are 1,200 pages of legislation already in the Fair Work Act. And now lots of people are going to have unions knocking on their door and saying, 'I want to come in and check your books.' It's just outrageous.

I know there are some problems in Australian workplaces. Some in the gig economy and some platform operators haven't been ideal gig or platform employers. But we have fixed a lot of these problems, and a lot of these faulty and less-than-Australian-standard platform employers—I won't mention them by name—have said that they are going to comply with this. We're all familiar with ones that have corrected inadvertent mistakes on large amounts of wages that were not intentionally stolen from their employees. But we have an incredibly complex system.

The same job, same pay provisions are obviously aimed at labour hire, but it will actually capture private service contractors. Labour hire companies have to comply with the law now. One can already, as I mentioned earlier, ask to be converted to regular full-time employment or permanent part-time employment at the 12-month interval. But a simple application to the Fair Work Commission, saying, 'We suspect that this business is underpaying people,' will enable a Fair Work Commission order so that you can go and enter that business and go through their books. It will allow, as I said, unions back into workplaces that have functioned really quite adequately for decades without that. In 1992, 42 per cent of employees in Australia were members of unions. At the moment that's down to 12½ per cent. There's a reason for that. People have voted with their feet and with their freedom to run the business the way they like, and a lot of people like getting paid 25 per cent extra and not having to wait to get all those other conditions that you get with permanent part-time or full-time employment—and a lot of those jobs are feminised jobs. It suits people to be casual.

A lot of people I know have done regular casual work for decades, and it suits them fine. It's not a uniform situation. This will really make it so difficult for some small and family businesses and those that I've mentioned to keep operating under the fear of being hit with criminal charges because, under those complex systems, they've made inadvertent, innocent mistakes.

The other thing about these same pay, same job provisions is that, across Australia, there are many people involved in trades, and many of them become major contractors who have a trusted group of subcontractors. This bill will swoop in and interfere with their existing arrangements, because, if you're doing regular subcontracting work, these terms and provisions will apply to you if you're doing it all the time. There have been cases before where, if you get your work from the one contractor the majority of the time, there's an argument for you to not be treated as a subcontractor. This is going to make that even more complex. I know many tradies who have used regular subcontractors for years who, all of a sudden, will have other onerous provisions forced upon them—and many of those subcontractors will not be happy—when a union turns up at their worksite and says, 'We think you're underpaying people; show us your books.'

Then they're forced by the Fair Work Commission to employ people that are quite happy being a subcontractor or a casual on a regular basis because the terms and conditions of the 25 per cent loading is a much better deal for people who live in the here and now. They want to do that. As I said at the outset, confusion, complexity and extra costs for employers and consumers will be the net result. It takes employment in many cases back to the 1970s. It expands union powers, drives the right of entry into workplaces and expands union delegate powers—none of which were mentioned, by the way, during all the exposures and the consultation with industry. I haven't heard any peak body support this. You only had to have been at the Minerals Council event the other night to hear the insightful words of Tanya Constable—she called a spade a spade there. ACCI and all the other peak bodies are scratching their heads thinking, 'How can we get some commonsense changes in this?'

The gig economy, I should mention, is flourishing, and there are many NDIS workers who are working on the Mable platform, for instance. That's a great platform, and it's allowing people who work in the NDIS to manage themselves. It's a platform that is very user friendly, but all those people that are using that regularly and have people working for them on a casual basis using that platform will be swept up into these changes. It will drive people into regular employment in bigger businesses, because small businesses just don't have the wherewithal to deal with this. It is another sleeping timebomb here. I can see the rebirthing of the Road Safety Remuneration Tribunal, which really destroyed businesses and had the potential to destroy many more owner-operator small trucking businesses, which are the lifeblood of many country towns and regions in Australia, because there is a hidden provision in this bill gives the minister the power to make supply-chain participants, which are fancy words for small trucking businesses, come under the regulation of the Fair Work Commission. So owner-driver businesses will lose control and the flexibility to set their own rates and conditions. It's going to hurt businesses in regional Australia and particularly remote Australia because a lot of the transport in those more remote areas is done by small owner-operators. No-one will be game to do any expansion of their employment when they've got the threat of someone turning up at their business and alleging that they've committed wage theft and are subject to criminal charges.

There are things in schedule 3 that I support. There's no problem with first responders having their workers compensation simplified so that they don't have to prove that their PTSD was due to their work, and there's also no problem the fair entitlements guarantee. But, really, this has to go back to the drawing board. I can't support this bill.

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