Louise Miller-Frost (Boothby, Australian Labor Party) Share this | Hansard source

I rise today to speak to the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. Despite those opposite being confused, that's simply all the legislation seeks to achieve. It does what it says on the tin or, in this case, the title. This bill will close loopholes that allow Australian workers to be taken advantage of, loopholes that cheat hardworking Australians of wages that they have earned or conditions that they are entitled to. Specifically, I wish to speak to a part of this legislation that will support workers that are being taken advantage of in the gig economy and through labour hire companies. While there are many types of work that are subject to the extreme casualisation of work that the gig economy represents, I'm going to talk about the experiences of disability workers in this area and what this bill will mean for them.

Work providing services supporting people with disables is important work. It's often physically and emotionally demanding work, and,, as with many of the caring professions, it is arguably not well paid. It's certainly not paid at the same level as the work is valued by the recipients of care, their families and their loved ones. Our most vulnerable members of the community need to be supported by workers that have stable, secure jobs, which in return provide stability and security for those that need it, and these two elements go hand in hand. If it isn't hard enough to put together a living wage, pay your mortgage or rent and feed your kids on a casualised wage or in series of part-time jobs, imagine finding out that your employer is ripping you off. Imagine finding out that your colleague is being paid more than you simply because you're employed through a gig platform or a labour hire firm. Imagine finding out that, no matter how hard you work, how much of your heart and soul you put into your valuable work, your work isn't valued—you are not valued—sufficiently to be paid properly, to be paid according to an enterprise agreement. That's what this bill is about: closing the loopholes, valuing workers according to their work, not according to whatever loophole an employer can find to underpay you. The bill does what it says on the tin: it closes loopholes.

I've met with workers in the disability sector, through their union, and they've told me their stories. They're heartbreaking. This legislation is welcomed by unions that represent disability workers, as they've listened to these heartbreaking stories and they've heard directly from their members how unstable work through labour hire companies means they struggle to make ends meet.

Around 40 per cent of the community services workforce, and more than 60 per cent of the disability support workforce, is in part-time or precarious employment, without entitlements. The submission made by the Australian Services Union to the Senate Select Committee on Job Security goes to the heart of this issue. The current legislation is not robust enough to protect disability workers and, by extension, their clients. Work in all sectors of the economy has been transformed in recent years by the growth of insecure or precarious employment. This precarious employment comes in many forms, including temporary or casual jobs, greater reliance on nominally independent contractors and other forms of self-employment, and the use of digital or online platforms to recruit and deploy labour.

There has been a rapid rate of growth in all forms of precarious employment, but the growth of this kind of instability has negatively affected not only workers in the disability sector but their clients as well. It is a defining feature of the disability sector that workers are employed most often in some form of precarious employment. The labour market has evolved with the disability sector in response to changes in funding arrangements and the impact of 10 years of mismanagement of the NDIS by the former government. This mismanagement opened the doors to workers being taken advantage of and letting these platform providers undermine the workers and their pay. It is not technology that workers in the community and disability sectors fear but rather how that technology is implemented, managed and controlled and whose interests prevail as the process unfolds. It is systemic issues—laws, institutions and social expectations—that determine the impact of technology and other changes in the workplace on working people and on their families. It is therefore the responsibility of government and its regulators to ensure workplace rights for all workers, and that is what this legislation seeks to do.

This legislation provides stability for workers, which in turn provide stability for those they care for. The growth of precarious work poses fundamental challenges to the traditional model of employment and to traditional methods for regulating work and ensuring minimum standards for the rapidly growing disability workforce. Traditional labour regulations which have been developed over time and are most familiar to workers in other sectors of the economy often exclude temporary or independent workers. While employment across the disability sector is marked by the highly insecure nature of the employment, there has been an alarming increase in the number of workers employed as so-called platform workers. The submission by the Australian Services Union found that, in Victoria, platform work is more prevalent than previously thought and is growing. Independent contracting arrangements are very common, and there has been a steady increase in ABN registrations as a result.

The report describes the major characteristics of modern precarious work. Several factors have facilitated the expansion of precarious forms of employment, including independent contracting, self-employment, casual or temporary jobs and digital platform work in the disability sector in recent years. Technology such as smartphones and computers has played a role, by allowing employers to tap pools of labour, assign them to tasks and supervise and compensate them more easily. Broader economic conditions have also been important—particularly, the ongoing existence of a large pool of underutilised labour. All these factors contribute to the problem and are creating a situation that employers and conservative governments like those opposite can take advantage of, and workers are the victims of this. The Albanese government were elected on a promise to fix these loopholes, and that's what we're doing. To do that, we need to close the loopholes that are undermining wages and conditions. That's what this set of workforce relations reform is all about. We are cracking down on the labour hire loophole that's used to undercut pay and conditions. We are criminalising wage theft, properly defining casual work so casuals aren't being exploited and making sure that gig workers aren't being ripped off. Closing labour hire loopholes will simply require an employer to pay the rates that it has already negotiated and agreed to. These are rates of pay that are already set for the work being done. These employee-like reforms simply require workers to have some minimum standards benchmarked against existing award rates or employment agreements when they are working in a way which is similar to employees.

These wage theft reforms will simply strengthen the enforcement of existing rates of pay. Most employers out there don't want to be undercut by the bad apples, their competitors, doing the wrong thing. This new definition of casual employment will clarify what was always intended with casual work—that, if you're working regular and predictable hours and you want to be permanent, you will have that pathway available to you. This is cost neutral. Employers will either pay casual loading or pay leave entitlements, not both. These laws will strengthen the current workplace relations framework and provide certainty, fairness and a level playing field for both businesses and workers. We know that labour hire has legitimate uses in providing surge and specialist workforces, and that will continue to be the case. What we're concerned about is the labour hire loophole where companies deliberately undercut the agreements they've already made with their workers. They've agreed on fair rates of pay with their workers and made an enterprise agreement, and then they undercut that agreement by bringing in a labour hire workforce that's being paid less for the same work—and that's the loophole we have to close. Simply put, the bill amends the Fair Work Act 2009 to give powers to the Fair Work Commission to make orders that labour hire employees be paid at least the wages in a host's enterprise agreement.

I hear those opposite talking about this costing employers $1 billion a year, and I can only presume that this is how much they guesstimate is being stolen from Australian workers now. If they're making an issue of it, I guess they're okay with it. If your business model cannot support a living wage for your workers—if you cannot meet your legal obligations to pay people according to the award and the enterprise agreement—then maybe you need to be rethinking your business model.

This 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 work conditions. We're not trying to turn people into employees when they don't want to be employees. There are a whole lot of gig workers who like the flexibility from using this technology, and that won't change under these laws. But we know there is a direct relationship between a low rate of pay and safety, and it leads to a situation where workers take risks so they can get more work because they're struggling to make ends meet or they're unsure whether they'll be cut off the platform. And there have been tragedies. We can't continue to have a situation where the 21st century technology of gig platforms comes with 19th century work conditions. And we don't want to be a nation where you have to rely on tips to make ends meet.

The evidence is in. A number of inquiries have highlighted that some of these workers receive less pay than they would if they were paid under an award safety net, and they have no protections if they lose their work unfairly. This measure gives the Fair Work Commission a new power to set minimum standards for employee-like workers performing digital platform work. Standards may be mandatory and enforceable with civil penalties or for guidance only. The Fair Work Commission can only set minimum standards for independent contractors who perform digital platform work, also known as work in the gig economy, and also have one or more employee-like characteristics, which are low bargaining power, low authority over their work, receiving remuneration at or below a rate of comparable employees or other characteristics that may be prescribed in regulation.

The bill provides a non-exhaustive list of content that minimum standard orders can cover, including payment terms, deductions, insurance and cost recovery. Orders must include coverage and dispute resolution terms. The Fair Work Commission must not make standards in relation to rostering and overtime arrangements, matters that would change the nature of engagement or status of workers, or matters relating to work health and safety that are dealt with comprehensively under another law of government.

The bill provides comprehensive guardrails to govern how the Fair Work Commission is to perform its functions, including the requirement to balance several competing factors included in the new minimum standards objective when considering making standards. And, importantly, orders cannot change the form of engagement or the status of employee-like workers' engagement. Noncompliance with minimum standards orders carries a civil penalty, and the Fair Work Ombudsman has the responsibility for education, compliance and enforcement. The bill also provides protection for unfair deactivation for employee-like workers. This is where an employee-like worker has been operating on a platform for six months or more and is deactivated without fair reason. For deactivation to be fair, the deactivation would have to be for a valid reason and the process consistent with the new digital labour platform deactivation code. The Fair Work Commission can order reinstatement but not compensation.

This bill does exactly what it says it does. It closes loopholes. It seems an obvious thing, but loopholes that mean Australian workers are unfairly underpaid or have unsafe or unfair work conditions should be eliminated. I'd like to thank the Australian Services Union for their submission. Australians, as a whole, are a hardworking bunch, and we in government want to see them be able to get ahead as a result of their labours, and that's what this bill does

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