Mr Tony Burke (Watson, Australian Labor Party, Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

For nearly 10 years, wages were kept low as a deliberate design feature of the previous government's management of the economy.

Insecure work was encouraged, with no regard to the households crying out for security.

Institutions were established, and appointments made, with the intention of increasing conflict rather than bringing people together.

The introduction of this bill is about making a choice.

At a time when the pressures of global inflation are hitting every household, our workplace laws are simply not up to date.

Cost of living is about the gap between income and prices. No-one can seriously claim to care about the cost of living if they support continued wage stagnation. Today, inflation is running at 7.3 per cent and wages are at 2.6 per cent. Every day the impact of a decade of wage stagnation is felt by households trying to make ends meet.

The urgency of getting wages moving is most acute in feminised industries. The gender pay gap still sits at an unacceptable 14.1 per cent.

For a decade we were told low unemployment would create the hydraulic pressure which would push up wages. We now have sustained low unemployment. Yet wage growth remains unacceptably low. The hydraulic pressure is there, but there are leaks in the pipes. This bill starts to plug those leaks, so wages can start moving again.

To promote job security, to close the gender pay gap, to get wages moving—we need to change the law.

In the design of these reforms, we have deliberately focused on the needs of lower-paid and feminised workforces.

Loopholes which have hindered job security and wage growth have appeared in the Fair Work Act over the past decade.

Years ago, job security was simply defined across the economy as the difference between being a casual or a permanent employee. Job insecurity now has many faces. We see it in the gig economy, labour hire, new forms of insecurity for part-time employees, and rolling fixed-term contracts which effectively amount to a permanent probation period for employees. We see it where casual loading has not been a sufficient incentive to promote secure jobs.

All legitimate forms of employment have their place. All will continue to exist. But where there is abuse, we must curtail it. Where loopholes have arisen in legislation, we must close them.

Despite a near-record low unemployment rate of 3.5 per cent, inflation is fast outpacing wages growth and workers are falling behind.

Businesses are struggling to attract workers, and to retain those they already have.

Australia's current workplace relations framework is not working to deliver a fair go for workers, or productivity gains for employers.

The Albanese Labor government wants to see a strong economy that delivers for all Australians. We want to see more workers in good jobs: jobs with security, fair pay and proper protections. We want workers to have a pathway to a better life and businesses to thrive.

For this, we need fair, effective and up-to-date laws.

Australians have asked for change. They have asked for less conflict and fairer pay. They have asked for a better future for themselves, and for their families.

It will take time for this bill to result in improvements in workplaces and pay increases in the pockets of Australians, so we cannot waste a moment in passing it.

My department and I have consulted closely with businesses and unions in the design of these reforms. As a result of that ongoing consultation, further government amendments may be made to this bill. Discussions are well advanced with stakeholders as to how we clarify certain issues, including how to best ensure that (1) businesses and workers who already successfully negotiate single-enterprise agreements can continue to do so; (2) voting processes in relation to multi-employer agreements are fair, democratic and workable and occur at the enterprise level; (3) agreements cannot be put to a vote of employees without the agreement of employee organisations who are bargaining representatives; (4) a reasonable period of good-faith bargaining occurs before either party can resort to arbitration; (5) businesses competing on quality, on innovation and on product and service offerings, rather than wages and conditions, are able to continue to do so; and, finally, that multi-employer bargaining is not extended to industries in which it is neither appropriate nor necessary—in particular, commercial construction.

I'll now outline in detail the measures in the bill.

Gender equity

Australian women are among the most educated in the OECD; and are participating in the workforce in significant numbers. Yet over the period from 1983 to date, successive governments have only been able to close the gender pay gap by 5.1 percentage points.

Some of the most undervalued workers in our country are workers in female-dominated industries. Many are the very workers who put their health and safety on the line to guide us through the shutdown period of the pandemic. Workers in health care, aged care, disability support, early childhood education and care, the community sector, and other care and service sectors.

Work in these industries is undervalued because of unfair and discriminatory assumptions about the value of the work and the skill required to do the job.

This undervaluation is one of the biggest causes of the gender pay gap and our reforms take a number of key steps to address it.

Objects

Gender equity is at the very heart of our government's agenda; and this bill will place gender equity at the very heart of our Fair Work system—where it belongs.

Under our reforms, gender equity will be included as an overarching object of the Fair Work Act, in the modern awards objective and in the minimum wages objective.

These amendments will embed gender equity as a central goal of our workplace laws; and set a clear expectation that the Fair Work Commission must take into account the need to achieve gender equity when performing all its functions—when setting the minimum wage; when considering changes to awards; and in all other decisions it takes.

Pay equity principle and expert panels

It shouldn't be impossible for working women in undervalued industries to win a pay equity claim before the commission; but currently it is.

Our laws have placed insurmountable hurdles in the path of workers seeking equal pay over many years. Our early childhood educators, for example, were unable to win a pay rise in 2021 because they were unable to find an appropriate male comparator group. Because there is no male comparator. It's an impossible task.

The work of our early childhood educators is essential to the successful development of our children and our nation. It should be valued on its own merits, free of discriminatory assumptions based on the gender of the people who perform the work.

Over the years there have been many important milestones in the long fight to win equal pay for women: the national minimum wage and equal pay cases of 1969 and 1972; the passage of the Sex Discrimination Act in 1984; the establishment of the Workplace Gender Equality Agency in 1986, and improvements in the Fair Work Act in 2009.

The reforms in this bill are intended to reverse decades of unfair outcomes for women workers, by removing the need to find a male comparator and making clear that sex discrimination is not necessary to establish that work has been undervalued.

To support these changes to our laws, we've announced $20 million in the budget to establish a Pay Equity Expert Panel and a Care and Community Sector Expert Panel, with a dedicated research unit, in the Fair Work Commission.

These changes are further complemented by our reforms providing greater access to bargaining for lower-paid and feminised sectors through the supported bargaining stream, which will help workers to negotiate better pay and conditions for themselves.

The historic reforms in this bill are the result of decades of courageous and tireless campaigning by women workers and their unions, gender equity advocates and academics—some of whom are with us in the chamber today—who have simply refused to accept that certain types of work should be valued less by our society, simply because it is work done by women.

From the public servant Louisa Dunkley campaigning for and winning equal pay in 1895; to the factory worker Zelda D'Aprano chaining herself to the doors of Melbourne's Commonwealth building in October of 1969; to the historic victory of the Australian Services Union winning equal pay for community sector workers in 2012.

I also acknowledge the work of so many of my colleagues who have championed this reform over many years: the Minister for Women, Senator Katy Gallagher; her predecessor the member for Sydney, who made a number of the election commitments that are in this bill, and many other members of caucus—past and present.

I also acknowledge the leading work of the states, including Queensland, in developing pay equity principles on which provisions in our bill are closely modelled.

I recently visited an early childhood education centre in Brunswick East, where the director, Jane (who I understand is with us today) told me she has spent 40 years in the industry. She is incredibly passionate about her job, but struggles constantly with staffing shortages due to inadequate pay and conditions in the sector. She has been waiting for a lifetime for the essential work of her and her staff to be properly valued. She should not have to wait any longer.

Pay s ecrecy

Workers who want to have a discussion about pay equity at work should not be prohibited by their employment contracts from doing so.

This bill will prohibit pay secrecy clauses, bringing transparency to workplaces.

Critically, this bill protects workers by saying if you want to tell someone how much you are paid, that's up to you.

Prohibiting sexual harassment

Stamping out workplace sexual harassment is central to achieving safe, productive and gender equitable workplaces.

Under the previous government's laws, there was no express prohibition on sexual harassment under the Fair Work Act; and Stop Sexual Harassment Orders were only available to some workers.

We will fix these issues.

Our changes mean that whether you're a nurse in Tamworth, a plumber in Perth, or an office worker in Canberra, you can ask the Fair Work Commission to deal quickly and effectively with your complaint of sexual harassment in the Fair Work Commission—whether the harassment occurred in the past or is ongoing, or both. The new provisions also allow the Fair Work Ombudsman, to investigate and assist with compliance.

These changes send a clear message that workplace sexual harassment will not be tolerated.

These reforms fully implement recommendation 28 of the Respect@Work report, complementing the Attorney-General's proposed reforms to the Sex Discrimination Act. This bill means that all legislative changes recommended by Respect@Work are now before the parliament.

This bill also strengthens the Fair Work Act's antidiscrimination protections, bringing it into line with other Commonwealth antidiscrimination laws.

Flexible working arrangements

Too many Australians are struggling to manage their work and care responsibilities. This is damaging families, communities, and our national economy.

Women still carry the main responsibility for caring work; and are more likely to request flexible work arrangements. In order to access the flexibility they need to manage work and care, they are often forced to drop out of the workforce, or to take lower-paid or less secure employment. This plays a major role in widening the gender pay gap. We want families to have better access to flexible work, so they can better share and manage their caring responsibilities.

Under our current laws, an employee can ask for flexible work, but if their employer says no, they've got nowhere to go.

The problem is starkly illustrated by the recent report by the Social Policy Research Centre at the University of New South Wales, commissioned by the Shop, Distributive and Allied Employees Association (SDA), called Who cares?, which outlines the damaging collision between work, family and caring arrangements for Australia's retail, fast food and warehousing workers.

The essential contribution of these workers meant we could all access food and other necessities during lockdown periods of the pandemic.

Yet the harrowing stories in this report show these workers are stressed out, exhausted and barely able to manage their family responsibilities. Alarmingly, the report shows that the children of workers in this industry are struggling to access early childhood education and care; essential for their development and future success.

These types of stories are unacceptable.

The findings of Who cares? are supported by the Senate Select Committee on Work and Care, chaired by Senator Barbara Pocock, which finds that 'current workplace laws and cultures are not designed to recognise or support working carers, with the needs of people balancing work and care being easily ignored or overlooked'. The interim report recommends access to flexible work as a key area for reform.

Flexible working arrangements not only help parents and carers but also provide job security and an economic lifeline to employees with disability, older Australians, and workers experiencing family and domestic violence.

We will make two key changes to the law to support flexible work.

We will bring employers and employees together in workplaces in the first instance to have a genuine discussion about flexible work.

And if agreement can't be reached at the workplace level, we will give the Fair Work Commission the power to resolve the dispute.

Job s ecurity

Fixed t erm contracts

The number of workers on fixed term contracts has increased by over 50 per cent since 1998. More than half of all employees engaged on fixed term contracts are women; and more than 40 per cent of fixed term employees have been with their employer for two or more years.

This bill will limit the use of fixed term contracts for the same role beyond two years or two consecutive contracts, whichever is shorter, including renewals. If these rules are breached, the term of the contract that provides for its expiry on a set date will be of no effect, but otherwise the contract will be valid. The provisions allow employers to use fixed term contracts for legitimate purposes, while providing appropriate protections to employees.

Stronger protections for workers

The bill gives immediate effect to recommendations of the 2019 Migrant Workers' Taskforce.

Amendments I am introducing today would not have been possible without the advocacy of migrant workers and their unions.

It will now be unlawful to advertise a job for less than the applicable minimum rate.

Secondly, the bill will provide greater ability to recover unpaid entitlements, by increasing the cap on small claims under the Fair Work Act from $20,000 to $100,000. The current low threshold forces many workers to pursue pay claims through a full court process which can be expensive, time consuming and complex.

Firefighters

The bill will also fix a loophole the previous government failed to address by including ACT volunteer firefighters in the presumptive liability provisions. We will also add malignant mesothelioma to the list of presumptive cancers for firefighters, and lower the qualifying period for oesophageal cancer from 25 to 15 years.

This is unfinished business and we will continue to consult to ensure our laws provide firefighters and all first responders with better access to the compensation they deserve for work related injuries and illnesses.

I acknowledge the advocacy of Mr Brett McNamara, an ACT government firefighter, who has been lobbying for changes to the law. I also acknowledge the representations that have been made to me from all members in this place and the Senate who represent the ACT, as well the United Firefighters Union and the ACT Volunteer Brigades Association.

Reducing barriers to bargai ning

Australia's bargaining system is not working effectively and hasn't worked effectively for a long time. Bargaining delivers simpler and more tailored workplace arrangements for businesses, and an average of $601 more to workers each week, compared with those on awards.

Yet only 14.7 per cent of employees are covered by an agreement that is in date.

The bill enacts commitments I made at the Jobs and Skills Summit in September.

Reforms will remove unnecessary limitations from the existing framework. Multi-employer bargaining is already contemplated by the act through three streams—single interest, multi-employer and low paid. The problem is it isn't working.

We're not creating new streams of bargaining; we are varying the existing streams to make them work and to get wages moving.

The prohibition already in the act on pattern bargaining will remain.

Bargaining at the enterprise level delivers strong productivity benefits and is intended to remain the primary and preferred type of agreement making. For employees and employers that have not been able to access the benefits of enterprise level bargaining, these reforms will provide flexible options for reaching agreements at the multi-employer level. This is intended to deliver more equitable and inclusive wage outcomes which benefit more Australians.

A stronger role for the Fair Work Commission

The bill will allow the Fair Work Commission to resolve intractable disputes through arbitration, where there is no reasonable prospect of agreement being reached.

These changes are intended to provide a strong incentive for good-faith negotiations, reduce the time for enterprise agreements to be finalised and allow for quicker resolution of intractable disputes.

Agreement t erminations

The bill will limit the circumstances in which an agreement can be terminated by the Fair Work Commission if the application has been made by only one party, rather than by consent.

To address this challenge, when determining unilateral application for termination of agreement, the bill requires the Fair Work Commission to consider whether bargaining is underway and whether the termination would adversely affect employees' bargaining position.

The commission will have the capacity to terminate an agreement where its continued operation would pose a significant threat to the viability of the employer's business, and termination would likely reduce the potential of job losses, and the employer guarantees to pay employees the relevant termination entitlements.

Termination of z ombie a greements

The bill will return balance and fairness to the system by sunsetting enterprise agreements that are out of step with the wages and conditions provided in modern awards. It's inconceivable that in 2022 there are agreements that still exist which lock in terms and conditions back to the WorkChoices days.

Sunsetting 'zombie agreements' will mean businesses need to pay the minimum entitlements provided for in awards, to benefit workers and level the playing field.

Simplifying the b etter o ff o verall t est

We'll make the better off overall test simple, flexible and fair.

There's consensus that approval requirements for enterprise agreements are onerous, complex and unnecessarily prescriptive.

We'll make key changes to fix this.

First, the concept of 'prospective award covered employees' is removed for enterprise agreements that are not greenfield. For the majority of proposed enterprise agreements, the test will be applied in relation to actual workers, and patterns and types of work that are reasonably foreseeable.

The bill will restore the original intent of the test as a global, rather than line-by-line, comparison against the modern award.

And, thirdly, if there is a common view that the employer and union have that the agreement passes the test, the commission will give primary consideration to that view.

Finally, as an important safeguard, the bill includes a process to allow employees or their representatives to reassess the test in relation to circumstances that the commission did not have regard to at the time.

This makes sure that no worker will be worse off.

Simplifying a pproval r equirements

Building on these reforms, we'll also remove complexity by streamlining commission approval of an agreement, while retaining strong protections to ensure employees are not disadvantaged.

Initiating bargaining

In addition, to encourage employers and employees to remain within the single enterprise bargaining stream, a bargaining representative will be able to commence bargaining if no more than five years have passed since the nominal expiry date of a single enterprise agreement, and a proposed new agreement will cover the same or a similar group of employees as the earlier agreement.

Supp orted b argaining s tream

The bill will rename and remove barriers to access the existing low-paid bargaining stream, with the intention of closing the gender pay gap and improving wages and conditions in sectors such as community services, cleaning, and early childhood education and care, which have not been able to successfully bargain at the enterprise level.

Unnecessary hurdles to entry in the current low-paid stream will be replaced by a broad discretion for the Fair Work Commission to consider the prevailing rates of pay in the industry, including whether workers in the industry or sector are low paid.

The commission must also be satisfied that employers who would be covered by a supported bargaining authorisation have clearly identifiable common interests, for example, whether or not they are substantially funded, directly or indirectly, by the Commonwealth, a state or a territory.

Single- i nterest b argaining s tream

Under the existing single-interest employer authorisation stream, employers who are not franchisees need to obtain my personal permission as minister. It's unnecessary red tape.

Under our changes, employers in the single-interest stream must have clearly identifiable common interests and the Fair Work Commission must be satisfied that it is in the public interest.

We want to see businesses competing on quality, on innovation, on product and service offerings—not on who can pay the lowest wage. If we are going to get wages moving, we need to stop the race to the bottom.

Cooperative b argaining s tream

The cooperative bargaining stream reframes and retains the existing multi-employer stream in the Fair Work Act; and is open to all businesses.

It's entirely voluntary. Note there's no industrial action in that stream. Conciliation and arbitration are by consent.

Bargaining assistance from the commission can be accessed on the request of the parties.

Fair w ork i nstitutions

The government is committed to fairness and integrity, and this extends to the agencies that regulate workplace relations matters.

The Australian Building and Construction Commission and the Registered Organisations Commission are ineffective and discredited institutions, more concerned about prosecuting workers and their representatives than tackling rampant wage theft or addressing workplace safety, or educating and promoting good workplace relations.

This bill will abolish the ABCC and the Registered Organisations Commission. The Fair Work Ombudsman will be the workplace relations regulator for all industries and the general manager of the Fair Work Commission will be the regulator on registered organisations.

Conclusion

These reforms reflect our vision for a fairer, safer and more inclusive Australia.

This bill is just the start of the government's reform of workplace relations, with a second tranche next year.

This bill is for those workers, like Jane in Brunswick East, who have been waiting far too long for their work to be properly valued. This bill is for all the employers who want to treat their employees fairly without fear of being undercut by unscrupulous competitors.

This bill delivers on the government's commitment to ensure a fairer workplace relations system that provides Australians with job security, gender equity and sustainable wage growth.

This bill will not fix every problem in our workplace relations system. But it is a strong start. And it will provide a strong foundation on which we can continue to build the fairer and more equitable system Australians need, want and deserve.

There will be requests to move more slowly, to wait extra months, to pretend that there's no urgency.

As this bill proceeds through the House and the other place I ask members and senators to remember how long people have already waited.

Waited a decade while wages were kept deliberately low.

Waited generations while the gender pay gap refused to close.

Waited while children became adults and caring responsibilities collided with rosters.

Waited in insecure work for the secure job which still hasn't arrived.

These Australians have waited long enough. And while waiting they have turned up every day and done their job. It's now time we did ours and legislated for secure jobs and better pay.

I commend the bill to the House.

Debate adjourned.