Zoe Daniel (Goldstein, Independent) Share this | Hansard source

Goldstein is a diverse community—more diverse than some might think. Certainly, it's one of the wealthier electorates in this country, with residents who work in the corporate sector, but it has close to 17,000 small businesses, according to the latest data from the Bureau of Statistics, many of them employing 15 people or less. It also has growing numbers of lower paid professionals, close to 25,000 of them women in the feminised sector—nearly 8,000 of them working in the care economy, servicing hospitals, aged care and early childhood education and care, in and around Goldstein. All of them have a stake in this legislation, and my task is to make sure they benefit, rather than pay a price, should the many measures in it become law. The benchmark for these kinds of legislative decisions, in my view, is: do they deliver benefits for most people?

Several of the measures in this lengthy bill, the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, are uncontroversial—indeed, they are to be applauded. I made it clear to the minister some weeks ago that the uncontroversial elements of the bill should not have been included in omnibus legislation. All governments do it, and it's disrespectful to the parliament, getting in the way of considered discussion of major policy initiatives and changes. None of us is elected by our community to wave through comprehensive changes to legislation without thought and scrutiny.

Among the measures that are uncontroversial and urgent are the proposal to make it easier for AFP officers, paramedics and firefighters to claim for PTSD, and measures to protect victims of domestic violence from being discriminated against in the workplace and to protect redundancy payments for workers who've been working for a larger business that has become only technically defined as a small business due to insolvency. Another priority is the measures to bring silica into line with asbestos under the Asbestos Safety and Eradication Agency. These are all measures that require implementation without delay, and in this I agree wholeheartedly with Senator Jacqui Lambie that, if these elements were separated from the bill, they could be resolved immediately without being subject to what will be a lengthy and complex debate and Senate inquiry, which will result in an undoubtedly markedly different bill by the time it passes into law.

In this, I would again say to the government, as I have previously, that chucking everything, including the kitchen sink, into one piece of legislation is not good practice. It's a political wedge approach—a deliberate habit of the major parties that means either voting for a bill that's in some way flawed or against a bill that has its positives. And, on that, I note that there are several measures in this multipart piece of legislation that are not simple.

I do welcome the extent to which the workplace relations minister has made himself and his staff available to me and other members of the crossbench, both before and after he introduced the legislation. That said, some of the measures in this bill remain easier to deal with than others. Wage theft—or chronic underpayment, if you prefer—for example, has become something of an epidemic, if not an operating principle for some businesses in recent decades, arguably helped by the watering down of union powers which, although disliked by business, may have caught both errors and deliberate rorting. Companies as big and as profitable as Woolworths, the Commonwealth Bank, Bunnings, BHP, Qantas, Domino's and 7-Eleven have all been caught out, as have several of our biggest universities, and, indeed, my old employer, the ABC.

The legislation offers a hierarchy of consequences designed to deal with underpayments, with the most severe penalties reserved for employers who have deliberately and knowingly underpaid staff, with lesser consequences for an employer who was aware of a substantial risk of underpayment but did so anyway, and lesser again for an employer who unknowingly underpaid. This is as it should be. Penalties are proposed to be the higher of the maximum penalty units available, or up to three times the amount of underpayment. They're intended to be sufficiently high to discourage the payment of penalties as a 'cost of doing business', as the department put it in its consultation paper. The department also says that penalties for a criminal offence in relation to record keeping are designed to be high enough:

to ensure it is not "cost effective" for employers to fail to keep records entirely in order to obscure evidence of underpayments.

Previous efforts to create a disincentive to wage theft have failed, and the aim of this legislation is to set that higher bar of deterrence. My residual concern, though, is the impact on small businesses, those without HR departments, which may not have the time or resources to afford the investment in payroll systems as sophisticated as bigger companies, nor have ready access to information on relevant pay scales and the like. The government's now proposing that the Fair Work Ombudsman will develop a voluntary code with small business for small business which would offer those small businesses that sign up and adhere to its terms a complete defence against underpayments in most circumstances. Whether that would be enough to satisfy small business is as yet unclear. Certainly I don't know, because I haven't seen the amendment.

When it comes to large corporates—and this bill is designed to target the likes of Qantas and BHP—I do believe that most people would see it as unreasonable for workers doing exactly the same job to be paid differently. If they're equally experienced, that shouldn't be the case, and yet at Qantas, for example, the evidence is that flight attendants on the one aircraft can be paid at up to eight different rates. Meanwhile, BHP is warning that the same job, same pay provision would cost it $1.3 billion a year in revenue. It could be argued that, by saying that, the big Australian has inadvertently revealed the extent to which it is underpaying workers provided to it by labour hire companies compared with its regular staff.

Short-term surge requirements are one thing, and they're exempted under this legislation; labour hire workers who have the details of a year's work laid out ahead of them are quite another, and that's why I will be proposing an amendment to extend the exception from the requirement to pay the protected rate of pay from three to 12 months. In short, three months is too short. It would affect surge employment. It would potentially inhibit employment. It would potentially inhibit investment. It would slow down projects at a time when we need workers used as efficiently as possible to address the logjam in infrastructure projects in particular.

However, I have outstanding concerns regarding a number of other aspects of this bill. One is the so-called employee-like provision in relation to gig workers; the other is the redefining of casual work and the complexity that introduces at a time when the costs of doing business are so high that it may be easier for businesses to simply avoid hiring.

My biggest concerns relate to provisions for what the minister terms employee-like workers—in other words, the gig economy. In the gig economy, workers may not experience the same level of autonomy to set their prices and bargaining power as traditional independent contractors, and certainly all gig workers deserve minimum standards and protection. Whether this legislation achieves that result or overreaches is the question. The gig economy includes horizontal models, which is marketplace; and vertical models, which is on-demand. Horizontal models allow workers and consumers to connect for a service—for example, Airtasker. Vertical models control the terms of the service provided—for instance, Uber. The minister has insisted that it is vertical services that would impacted, not horizontal. That, however, is not the view of Mable, a company that provides a large number of gig workers for the care sector, including in my electorate of Goldstein. Mable argues that its customers welcome the flexibility its services provide both for the outfits it services and for the workers. Mable's Executive Director, Peter Scutt, argues that the legislation would restrict flexibility because a large number of Mable carer-client relationships extend across six months, relationships that mature with time, and would be inhibited by the provisions of the legislation. On the face of it, this is one section of this bill that requires modification before I could see my way clear to support it.

Young people, food delivery riders and the like do deserve health and safety protections like most of the rest of the workforce. Drive through the Melbourne CBD any lunchtime and you'll see delivery drivers on their bikes and scooters ducking in and out between vehicles, in and out of the bike lane, running red lights. Why? I would suggest because they need to get from job to job as quickly as they can to earn the money that they need. Currently, the legislation requires that a worker must satisfy one of three criteria to be classified as an employee-like person. While young people deserve protection, I believe this is too close to shoehorning the award system over and above gig work. In short, it's too broad.

That's why I will be proposing an amendment that, to be classified as employee like, a worker must satisfy more than one of the criteria, rather than one or more. I believe this should afford the protections that largely young workers deserve without the complexities of the award system. Likewise, I will propose another amendment to modify the minimum pay provision for employee-like workers so that the prescribed minimum rate of pay refers to a base level of pay, not including other award entitlements, penalties, leave and the like. I believe this is sufficient to minimise exploitation without inhibiting the flexibility that attracts gig workers and maintains the business models of the outfits they work for.

Finally, there is the question of casual conversion. It's certainly the case that casual workers who wish for the certainty and benefits of permanency should have a more reliable pathway. Not, however, at the cost of those workers, most of them young, who welcome the casual loading and the flexibility of working only when their other demands allow. We're told that this change to the legislation may actually only be taken up by five per cent of the workforce, so the question is: are we using a sledgehammer to crack a walnut? And there is an important issue that this massive piece of legislation does not address, and that's the impact of irregularity of work patterns for low-paid casual and part-time workers, the majority of them women.

A major study of 6½ thousand retail workers by the University of New South Wales found that one of their biggest concerns was the absence of any reliability of shift patterns. Sixty per cent reported that they had different shifts from week to week, 41 per cent reported unexpected shift changes and 10 per cent reported no regular work days. That may work for some, but for many female workers who need the money but have caring responsibilities, both for children and ageing parents—the sandwich generation, as they have become known—it causes major problems. Because they have no reliable shift patterns or are told of their shifts only days, or sometimes hours, before they're expected to work, they can't access early-learning programs or early childhood education for their kids or make alternative care arrangements for their parents. The study found that only nine per cent were able to use formal care and that 49 per cent had to resort to informal care—including using older children or neighbours to look after their children. These women are the precariat.

Early learning is recognised as having lifelong benefits; those who miss out will never have the economic and other benefits of those who don't. This not only means they suffer, but so does society and the Australian economy. They're likely to be less skilled, affecting both their own and the economy's productivity. They're more likely to exist outside the formal economy, making them more reliant on benefits, at a cost to their opportunities and to the national budget. We must act to give these women, and they're largely women, what has come to be termed 'roster justice': reliable work patterns and timely notice of the shifts they will work so that they have a fighting chance of getting access to the care that their children and, in many cases, their parents deserve.

So that pretty much sums up the bill: some important stuff missing, some very good and urgent stuff—some which may help workers and some which may not—and some which may make life harder for small business. In the end, once the Senate has dealt with it, the bill which returns to the House in a very different form is expected to come down differently to what we're being asked to vote for at this time.

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