Dai Le (Fowler, Independent) Share this | Hansard source

I rise to speak on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. Before I delve into this bill, I would like to make it clear that I support good industrial relations policy—policy that will see a productive, engaged, diverse and flexible workforce with employees and employers having the ability to agree and negotiate a fair dinkum work environment and remuneration. No bill is perfect, and this is an example of that. The bill takes a radical approach in reforming the Australian workforce which the government did not really take to the election or indicate that it would do so. This radical industrial relations reform has sent shockwaves through the economy and many businesses that are holding up our country.

Many of us in this House are not industrial relations experts who can read through the hundreds of pages of the bill. Therefore, for me this bill has been challenging to work through. Many stakeholders, from small-business owners to industry bodies, have reached out to share their perspectives and interpretations of the bill, with a mixture of amendments proposed to make beneficial changes, but some parts of the bill have remained murky on its intended purposes. I do hold concerns as to whether the amendments put forward will positively change industrial relations or whether the complexities of the reform will stagnate the workforce, its viability and its productivity in a period where workforce shortages are a critical issue.

This bill will affect a large number of my Fowler constituents, both employers and employees. You see, Fowler is and always will be a working-class electorate, with data reporting that 43.6 per cent of people are active in the labour workforce. Many individuals own their own businesses, whilst many others are working for their local businesses. Within the ever-evolving economy, digital platforms are now also becoming a significant source of employment for my constituents. The bill promises to close loopholes which affect the most vulnerable people within the workforce. By dictionary definition, 'loopholes' are ambiguous practices which can be used to circumvent rules or obligations. Fowler is one of the most disadvantaged electorates in Australia, with many individuals at various stages of vulnerability. People are struggling to pay their bills, put food on the table for their families, have a roof over their heads and have a stable job. So I stand here today in the shoes of those in my community who would be most impacted by this bill.

It's important that we close loopholes, but there must be a balance in how the government proposes to do so. My focus remains on the impacts on the livelihoods of Australians and, in particular, small businesses from the pressure of the cost of living if the workplace reforms drive up the price of consumer goods and services and affect the viability of businesses to keep up with changes. These points came up repeatedly when reviewing the provisions relating to employee life reforms, targeting the gig economy, wage theft and casual employment.

I travelled to Melbourne recently for the Vietnamese Museum Australia's women and unity celebration event and was told by the taxi driver that Uber has now increased their fees, which would mean that he would have to pass on this increase to consumers by about $30. For Uber Eats delivery, he said, it would be about $60. Again, this will have to be passed on to consumers, the end users. He asked me how the Australian can do this to working Australians at a time of a cost-of-living crisis by killing small business's ability to operate.

The gig economy is a relatively new phenomenon, with more and more digital platform entrepreneurs rising into the scene with apps that contract and provide services. Digital platforms create an on-demand workforce at the tips of people's fingers on mobile phones and many other devices. These platforms offer the opportunity for people to choose the hours they work, where they work and when they work. People simply value the convenience of digital platforms, and contractors value the mutual flexibility. Therefore, individuals who sign up to provide their services on these digital platforms and choose to do so with the knowledge of the flexibility the platforms provide ad perceived as independent contractors, not employees. However, the government has coined the term 'employee-like' and embedded this in the bill, and the Fair Work Commission will be given powers to make minimum standard orders affecting the conditions of platform workers, as they would be employee-like. While this sounds like a good idea, the danger starts with the broad definition of 'digital platform work', which captures virtually every single digital platform that offers some form of contracting service. Proposed section 15N reads:

(1) Digital platform work means:

(a) work performed by an independent contractor, where:

(i) the work is performed under a services contract through or by means of a digital labour platform … and

(ii) payment is made for that work …

You could interpret this definition of 'digital platform' to effectively capture Uber, Uber Eats, DoorDash, Deliveroo, Menulog, Milkrun, Mable, Airtasker and many others.

This proposed provision will provide the Fair Work Commission with new jurisdiction to regulate digital platform work, which has been relatively untouched to date. We are talking about orders made by the Fair Work Commission which can dictate penalty rates. As I've provided in an example, Uber drivers and Uber Eats deliveries have already increased their fees to those that they contract with, but, as the taxi driver in Melbourne explained, it will have to be passed on to the end users: you and me.

For digital platform work that is designed purely for facilitating gig work, this policy may be perceived as an attack on the commercial arrangements of business owners and the self-employed. The essence of gig work is that people can be their own bosses and can dictate their own schedule without the intervention of others, especially government. Contractors post their services on platforms like Airtasker and Oneflare, free for all to connect with and engage if they so wish. This is their prerogative. We're treading dangerously towards the boundaries of one digital age that is functional and one that is dysfunctional by putting our hands into the gig economy. There may be some deterrent to entrepreneurs dabbling in the digital space in the future from the administrative burdens and legislative obligations that they will need to fulfil. Consumers would likewise be deterred from utilising digital platforms, as there will be a domino effect on price increases, which I've indicated is already happening. This may also trickle down to small businesses relying on digital platforms to sell their products or services. As an example, this is already taking effect in this space in the case of Uber.

I'm not convinced that these issues are adequately considered through these provisions, as the ministers have advised that small businesses are not affected but there's a real chance that small businesses are not spared. However, I recognise the regulation of specific areas of digital platform work, such as in the care sector, may prove beneficial. I had the pleasure of meeting Jordan and Laura Riley, the cofounders of Hireup, Australia's largest NDIS registered online platform, and their wonderful team. Hireup prides itself on being an employer with a digital platform space. It provides benefits to support workers who sign up and to host organisations that provide the work. Support workers would join as casual workers who would get paid in accordance with Hireup's level of hourly rates and would be covered by workers compensation insurance. According to Hireup, if a support worker were to get injured, they would only receive approximately $1,000 dollars under insurance on their disability support worker hire platform, as opposed to $2,600 under workers compensation insurance.

Hireup's digital platform structure is unique when compared to others in the market, as they are committed to making sure that support workers are not being taken for a ride and are paid commensurate to the level of work provided. This in turn ensures that there are high standards in the care sector. This is something that strongly resonates with me, as many constituents within Fowler are working within the care sector and deserve a safe and elevating working environment. Hireup also pointed out, and I acknowledge, that the care sector does receive a huge amount of government funding through an NDIS support model. It is therefore reasonable that there is regulation in this area of digital platform work, where a large percentage of funds comes from taxpayers. If the government seeks to proceed with regulating digital platform work, I'm of the view that it should be confined to the care sector and that the definition should be similarly revised.

Furthermore, I understand that the government is proposing to amend the definition of 'casual employee' to include the consideration of the real substance, the practical reality and the true nature of the relationship in determining if there is an absence of firm advance commitment to continuing and indefinite work. The current section 15A of the Fair Work Act provides for a contract driven definition, and states:

(1) A person is a casual employee of an employer if:

(a) an offer of employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work for the person; and

(b) the person accepts the offer on that basis; …

In essence, the totality of the relationship between the worker and the employer would need to be examined.

Whilst I can appreciate that the government is trying to reduce the risk of workers being exploited and not afforded their rights as casual workers, there are some concerns with this particular amendment. I ask the government to consider the following: the Fair Work Act is already complex enough, so how does the government expect a layperson to understand the lines in the bill about 'real substance', 'practical reality' and 'true nature of the employment relationship'? What do these actually mean? How do you define 'real substance'? What is 'practical reality'? What is meant by 'true nature of the employment relationship'? These terms are so abstract and I would argue they're difficult ideas for business owners and workers to decipher the intent of the legislation about them.

I have a constituent from a Edensor Park, a small-business owner, who voiced his concern about this section of the bill. He noted: 'We're not wealthy. We do not have degrees in law or accounting. We're not HR experts. We're just Aussie battlers.' Therefore, if the government intends this to be included then I urge ministers to spend time explaining and divining what they're talking about—specifically, when they refer to 'real substance', 'practical reality' and the 'true nature of the employment relationship'. That would help people and business owners, like my constituent, to understand their obligations.

Has the government considered the uncertainty that small businesses may encounter when engaging independent contractors? The definition will require examination beyond the contract. The same constituent I just mentioned has raised further that this proposed new definition would reverse the certainty that the High Court, in Jamsek, provided to Australians by adding layers of complexity and liability, and the risk that many may well not understand it. This ruling in Jamsek centres on examining the contract terms to determine the employee-employment relationship.

As I raised earlier, there is some good in this bill. Those need to be acknowledged: the provisions for industrial manslaughter, family violence, discrimination, amendments to the Asbestos Safety and Eradication Agency Act 2013 and wage theft. The provision on wage theft, in particular, sends a strong message to employers who are not doing the right thing that they will face severe consequences if they continue to take advantage of hardworking employees. It will now be a criminal offence for employers to intentionally underpay employees. This will be prosecutable by the Commonwealth Director of Public Prosecutions or the Australian Federal Police. This offence carries a maximum penalty of 10 years imprisonment or three times the amount of underpayment over $1 million.

There are safeguards available: if employers self-disclose conduct which may amount to wage theft they will not be referred for criminal prosecution. Instead, a voluntary small-business wage compliance code will be developed by the government and the employers group. The business must give evidence of compliance with the code to ensure that they will not be referred for criminal prosecution. In the event that a small business is referred to the FWO due to suspected intentional wage theft, the FWO may enter into a cooperative agreement. These amendments are necessary to ensure that employers understand that they must treat their employees with the utmost human respect for their labour.

This bill itself is a paradox, and difficult to discern meaning in. Accordingly, I call on the government to carve out the provisions mentioned above and to place them in a separate bill. I move:

That all words after "whilst not" be omitted with a view to substituting the following words:

"declining to give the bill a second reading:

(1) acknowledges there are over 14 200 small businesses trading in Fowler—which comprises 99 per cent of the local economy;

(2) recognises one in three small businesses in Australia are run by migrants and refugees

(3) acknowledges small businesses often do not have the resources for legal and HR professionals to dissect complex reforms

(4) recognises small business owners from culturally and linguistically diverse (CALD) backgrounds may require additional education and outreach on changes to regulation and compliance;

(5) notes the bill's regulation impact statement does not adequately address red tape and compliance costs for small businesses; and

(6) calls on the Government to:

(a) conduct an in-depth analysis of the regulatory and financial impacts on small business owners before passing the bill through the House;

(b )ensure small business owners from CALD backgrounds have equal access to information, materials and support; and

(c) allow further small business consultation by respecting the Senate Education and Employment Legislation Committee inquiry's reporting date of 1 February 2024".

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