Cameron Caldwell (Fadden, Liberal National Party) Share this | Hansard source

CALDWELL () (): I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 because I come from the Gold Coast, and we are the small business capital of Australia. We are hyperalert to actions by this government that will make running a small or family business harder. When we hear the minister or anyone from Labor describe these changes as 'modest'—a term which has been used in other proposed constitutional changes of late—the hair stands up on the back of my neck. Nothing about this is modest; it is overreach and overcomplicated.

What we see is a government beholden to outside interests. Recently, it was their friends in the Greens who they were happy to bow to on social housing policy. And with this bill, it's quite clear that the unions have them on the hop.

What the government is really doing with this bill is fulfilling a long list of union demands to imprint their full union agenda on Australian businesses. The first point of serious concern is the expanded powers of unions. The bill will amend the Fair Work Act to enable unions to exercise right-of-entry powers without any notice whenever it relates to wage underpayment. To gain immediate entry the union only needs to assert to the Fair Work Commission that it suspects a case of wage underpayment. No actual evidence is required to make that case. The National Farmers Federation is rightly concerned about these new rights of entry without notice which would allow union representatives to enter farms unannounced. For most farmers their workplace is also their family home. The farm is the kids' backyard. There are safety and biosecurity considerations. Union reps should not be able to waltz in unannounced. I think about the cane-farming families in the northern Gold Coast and the fact that they will be sitting ducks for union reps heading down the M1 for a frolic.

We've saw reports in the Daily Telegraph of activists like Thomas Mayo calling on unions to use their right-of-entry rules under the Fair Work Act to push the 'yes' case at job sites. If it was the 'yes' case yesterday, what will it be tomorrow? What will these unions do when they have effectively unchecked access to businesses? What a frightening prospect. For most businesses—and I know this because I have run one—your staff are actually your family. You want them to be looked after and you want them to look after you, so it is often the goal of growing a business to achieve permanent full-time work. But the reaction to this legislation from business owners I have spoken with is that it will be terrible for business. These are business owners that I know very much value their employees. If the threat of a drop-in from a union wasn't enough of a concern, the fear of failing to properly identify the employment status of employees is of serious concern.

The bill, of course, introduces a new definition of 'casual employment' that would replace the existing definition inserted in the Fair Work Act in 2021. The measure is completely unnecessary. The permanent casual loophole has already been closed. All casuals already have the right to convert to permanent status after 12 months if they work regular hours. The government plans to add a new right after six months in addition to the existing system that already allows conversion after 12 months. I am a lawyer by trade, so the reading and interpretation of this kind of thing is something that I am familiar with, but your average business owner is not. How on earth is a business going to interpret a definition that is three pages long and includes 15 factors to determine if an employee is a casual? This involves complexity and inevitably cost that will be passed on for consumers to cover. The 15 factors must all be considered but do not necessarily need to be satisfied. An employee will be casual only if they meet these factors. If not then the business is breaking the law if it tells the employee that they are casual, even if the employee wants to be casual. Quite frankly, you could describe these provisions as tricky, almost designed to force an employer to take the cautious approach because of not wanting to fall foul of the legislation.

The new conversion process itself is eight pages long. The new conversion regime for employees to convert after six months is separate to an existing regime that we know covers it after 12 months, which means we are creating two streams regulating exactly the same thing. It is so complex that the Fair Work Commission will have the power to order businesses from one stream to another. The new six-month conversion right has a test with 11 factors, four sections and seven subsections is in the legislation—just more complexity.

Employers must provide detailed reasons to employees in response to conversion requests. Employers can be exposed to involuntary arbitration by the Fair Work Commission if a worker or a union disputes their decision or their interpretation of the definition. The definition of casual employee will be changed to prohibit anyone from being engaged as a casual if they work regular hours. A court can order that the employee was always not a casual from the time of their engagement. For all of these reasons employers would have no choice but to force workers to move to a permanent role, thereby losing their additional income and choice of hours.

However, casual jobs will not magically be replaced by permanent jobs. Any claim that they will reflects a fundamental misunderstanding of why casual employment is both necessary and legitimate. These changes will in fact embed conflict in the workplace. The legislation will in effect discourage casual employment and make it too risky for some businesses to even consider.

There are some good points—and quite frankly the attacks on our side have been completely disingenuous and politically convenient. Nobody thinks that deliberate underpayment of staff is acceptable. To sit hear listening to speech after speech by those opposite painting my colleagues as wage vandals suits the appalling narrative of this bill. The good points include, for example, initiatives that support victims of domestic violence and emergency workers, which are admirable, but of course they're hidden behind a wall of radical changes. The bill adds the experience of family and domestic violence to the protected attributes for discrimination in employment. We do not oppose including protections for employees who experience family and domestic violence in the existing antidiscrimination provisions of the Fair Work Act. That is good amending legislation.

On first responders, schedule 3 of the bill amends the Safety, Rehabilitation and Compensation Act to introduce a rebuttable presumption that post-traumatic stress disorder suffered by selected first responders was contributed to, to a significant degree, by their employment. The first responders impacted by this change would be, for example, the AFP, firefighters, ambulance officers and paramedics, emergency service communication operators and other emergency services workers.

I want to make special mention of those emergency communications operators, some of whom I know. They're often the unseen sufferers of much trauma and distress in their role. To sit on a phone call while someone is dying, to know that a helicopter can't be dispatched to rescue someone from floodwaters, to hear the harrowing screams of pain—again, it's good amending legislation.

Perhaps we should be separating the bill in relation to wage theft, antidiscrimination laws and changes for the first responders from other parts of the legislation. The government, if it were serious, would remove those provisions from the legislation so that they can be voted on separately from the more radical elements. Maybe, when the Senate has its influence on this bill, moving forward we might see a different approach.

There are so many reasons why this bill is bad for business and for employees. It is impossibly complex. There is way too much uncertainty for both the employers and the employees. As I referred to before, the pages and pages and paragraph after paragraph of definitions that a small business or family business operator will be expected to interpret are, quite frankly, going to drive business to a standstill. By the minister's own admission it is going to add additional costs to businesses, especially small businesses. This will do one thing: it will flow on directly to the cost of goods for households. We know that, at a time when there is a cost-of-living crisis, when mortgages are going up and power prices are rising out of control, this is the last point of pressure that we need on goods and services. Do we need Australians to be paying more during a cost-of-living crisis because of this change and because of this pressure?

The bill is absolutely not going to do anything for productivity, and productivity is what is going to ultimately drive jobs and growth within businesses that will provide future stability for those businesses and provide the platform for people to move from casual to permanent and full-time as and when the business can support it. But productivity is not going to be an outcome from this bill. The bill does nothing to enhance competition. Ultimately, it actually risks jobs. This is where the bill completely misses the mark. When a business now looks at their staffing numbers and their staffing costs and does a risk analysis of whether they will see a benefit from taking the step of wanting to employ a new casual, will they do it or will they question whether the risks are just far too great?

This bill is designed to hand back to the union paymasters of the Labor Party. It is going to institutionalise conflict at an early time—after six months. You've barely got past the idea of liking to work at the place and all of a sudden you've got to make a decision as to whether you want to take on a permanent position without your choosing. Ultimately, this will deliver union officials into the backyards of mums and dads, onto their farms and through the front doors of their business without any notice and without any care. The government has said that it has made concessions for business, but it hasn't. I can't find them. I can't see them. Ultimately, what this legislation does is make a bad situation worse.

Interestingly, my colleague the member for Farrer pointed out that the definition of the term 'loophole' is 'a small slit style hole in the wall of a fortress or castle that would enable archers to simultaneously be defended by the wall against enemy attacks while also being able to see and shoot arrows in attack'. This legislation really is about perspective. The Minister for the NDIS for example and no doubt the minister who put up this bill have one perspective, but it's quite disagreeable to me. My perspective is this: unlike the balance available to the archers, the impact of these radical and extreme measures will leave businesses and employees defenceless against the regime of the unions and of this government.

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