Susan Templeman (Macquarie, Australian Labor Party) Share this | Hansard source

I wish I'd kept count of the number of times, when I was doorknocking in the lead-up to the last election, that people told me their stories about unfair working conditions and unfair pay. Those conversations, from Bligh Park to North Richmond, in Blaxland or Katoomba, highlighted the many loopholes that were being used to unfairly penalise workers. We were elected on a promise, a commitment to get wages moving and to make things fairer. To do that, we need to close the loopholes that are undermining wages, conditions and safety of workers, and that's what these workplace relations reforms do.

There are four main areas in this very comprehensive piece of legislation that I rise to support, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. We're cracking down on the labour hire loophole that's used to undercut pay and conditions. We are criminalising wage theft. We are properly defining casual work so casuals aren't being exploited. And we're making sure gig workers aren't being ripped off. I'm also pleased that there are measures that support emergency services workers who have PTSD as a result of their work and that support victims of domestic violence.

All the policies in this legislation were announced while we were in opposition, many of them more than two years ago. We took them to the Australian people at the 2022 election. Since May last year, we've consulted widely, including with business groups. They are not radical changes. We are making the current law work more effectively. We're closing labour hire loopholes, which will simply require an employer to pay the rates that have already been negotiated and agreed to. They are rates of pay that are already set for the work that is being done by workers. Our 'employee-like' reforms are really just about making sure workers have some minimum standards to be benchmarked against the existing award rates when they're working in a way which is similar to an employee. The wage theft reforms will simply strengthen the enforcement of existing rates of pay.

Most employers out there do not want to do the wrong thing, nor do they want to be undercut by the bad apples in their sector who are doing the wrong thing. They want an even playing field, and that's what these reforms will do. Our new definition of 'casual employment' will clarify what was always intended as casual employment—that is, if you are working regular and predictable hours and you want to be permanent, you'll have that pathway available to you. The laws are going to strengthen the current workplace relations framework and they will provide, really importantly, certainty, fairness and a level playing field both for businesses and for workers.

I want to be very clear about small business. The way we think about small business is we know it's different to big business. There will be a number of exemptions for small businesses with 15 or fewer employees. Like the minister, I grew up in a small business family. I also ran my own small business for 25 years. I know absolutely the pressure small business carries; the weight of responsibility it has for the people it employs. That's why, as part of the closing loopholes bill, there are the exemptions for small businesses.

In order to support small businesses, we are going to include the following exemptions. Exempting small business employers who use labour hire from the pay obligations under the closing the labour hire loophole measure. Small businesses with 15 employees or less will be exempt. There will be a longer, 12-month service period for casual employees of small businesses to access the new voluntary casual employee choice pathway to change to permanent, so double the time to do it. There will also be an exemption around the businesses who inadvertently underpay workers, and there will be the development of a voluntary small business wage compliance code to provide certainty for any small business with fewer than 15 employees who inadvertently commits wage underpayments, ensuring that only intentional wage theft is punished. Small business will also not be required to provide access to paid time for workplace delegate training.

These are adjustments that recognise the additional pressures that small businesses have and the fact that they don't have an HR department on hand. And while we want to see the same rights for every worker in every workplace, we do recognise that there are special considerations needed for small business so that the burden is not too great. Small business remains at the heart of our government's decision-making, and we will continue to do things that support them.

I would like to look in a bit more detail at some of the elements of this bill. I'll start with casual workers. We are standing up for casual workers who want to become permanent employees, and that means closing the loophole that leaves some people stuck, classified as a casual when actually they are working permanent regular hours. It means they work just like a permanent employee, but they don't get any of the benefits of job security, and that has real implications for their lives. It affects whether they can qualify for a mortgage. Their bills aren't casual, their bills come in week on week. Without that job security, the pressures are much greater for some employees. So employees who want to follow a pathway to permanent work will now have an additional pathway, but let's be really clear: no-one is going to be forced to convert to permanent and lose their casual loading base. For some people that casual loading base is more important than the permanency. We're legislating a fair, objective definition to determine when an employee can be classified as casual, which could help more than 850 casual workers who have regular work arrangements and give them greater access to leave entitlements and more financial security if desired.

There is no net cost to business in this measure. Employers will pay a loading if someone is casual, and they will pay leave entitlements if someone is permanent. They don't pay both. The new employee choice pathway recognises the objective status of the employee. It applies where their working arrangements have changed so they no longer meet the definition of being casual. The employee choice pathway is entirely employee driven, and employer obligation is to respond only if the employee notifies that they believe their status has changed.

Employees in medium and large businesses will be able to access the employee choice pathway after six months, but, in small business, it won't be until after 12 months. Small businesses will continue to be exempt from the existing casual conversion pathway. The pathway will remain for larger businesses, which is an obligation to proactively assess all casuals after 12 months of service if they have a regular pattern of work and offer them conversion, but small business will continue to be exempt from that obligation.

Another of the key changes is around the labour hire loopholes and closing those loopholes. Labour hire has a legitimate use in providing surge and specialist workforces, and that will continue to be the case. We're concerned about a loophole where companies deliberately undercut the agreements they've already made with their workers. They've agreed on a fair rate of pay with their workers, they've made an enterprise agreement and then they bring in another group of workers, undercutting that agreement by paying those labour hire workers less. That's a loophole.

This is delivering on our commitment for same job, same pay. The way it will work is that 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's enterprise agreement. I want to point out that the process for this is going to be a low-cost process because, again, there will be exemptions for small-business employers, and a default three-month exemption period will apply because we don't want to impact labour hire arrangements for surge work and temporary replacements and we want to make it a fair and reasonable process for people to be able to do. Again, this is something we said, and we are delivering on things we said we would do.

The gig economy is another area of important reform in this bill. The current rules have cost people's lives—people like Burak Dogan, a 30-year-old Turkish student who was killed by a truck in Sydney. He was denied workers comp because Uber said he wasn't working at the time, despite being logged on to the app and receiving Uber Eats orders on his phone as he lay dying under the truck. The current rules have also cost people's dignity and safety. Nabin Adhikari is a food delivery worker in Canberra, working for multiple apps, which many in the gig economy need to do. After costs, he currently earns $13.60 an hour and sometimes as little as $4 per gig, but there is such a lack of transparency over earnings and the algorithm that this is often difficult to measure. With every order, he's also worried about the potential to be deactivated from the app if the algorithm decides he hasn't made enough deliveries or he is too slow, and, as a result, he's under immense pressure to rush through traffic. These are just some of the many stories that have been shared with us about the issues we face in the gig economy.

We are extending the powers of the Fair Work Commission to include employee-like forms of work, allowing it to better protect people in the new forms of work from exploitation and dangerous working conditions. The change will allow the Fair Work Commission to make orders for minimum standards of new work, such as gig work. We're not trying to turn people into employees when they don't want to be employees—and a whole lot of gig workers like the flexibility—but just because someone is working in the gig economy shouldn't mean that they end up being paid less than they would have if they'd been an employee, nor should it mean that they are working in a more dangerous situation.

That really brings me to the new requirements around the transport industry. I want to talk about these because one of my constituents, Jasmine Payget, whose son was tragically killed by a truck driver, has been a huge advocate of improving the standards for the transport industry, and that's what we'll be doing in this piece of legislation. I really honour her advocacy and the advocacy of the TWU to persist in ensuring that the Fair Work Commission will be able to set minimum standards for independent contractors who are regulated road transport contractors performing work under a services contract in the transport industry. There'll be ongoing work on this, but it will save lives.

I turn to the amendment to criminalise wage theft. You wouldn't think we'd need to do this. You'd think that, if it's theft, it would already be a crime. If a worker steals from the till, it's a criminal offence, but, if the employer steals from the worker's pay packet, it's not. That needs to be changed. I'm conscious that some states are ahead of us on this, because this has been a push for many years and those opposite refused to act on this, and Labor governments in Victoria and Queensland have already done it. Our proposal will not undercut what the states have done. It introduces a criminal offence for intentional underpayment of employees' wages. If it is unintentional, it will be treated differently, particularly for small businesses, but the safe haven framework will ensure that this measure is focused on intentional wage theft. There are many details that I'll be very pleased to discuss with the members of my community.

We're also introducing an industrial manslaughter offence and increasing the penalties. We're extending the functions of the Asbestos Safety and Eradication Agency in this bill so that it addresses silica related diseases. This is part of a suite of things we're doing to keep people safe at work and ensure there are some standards should they become unwell. The bill also makes it unlawful to discriminate against an employee who is subject to family and domestic leave, and it supports first responders who sustain PTSD, meaning they will not be required to prove their employment contributed. These are important reforms.

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