Carina Garland (Chisholm, Australian Labor Party) Share this | Link to this | Hansard source

This legislation, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023, is really important to me, as someone who has spent the best part of the last decade working in the labour movement with, in particular, workers who are some of the most marginalised in our community, such as those in insecure work, migrant workers, young workers and women workers. This bill will improve protections for those cohorts, so the proposed legislation before us today is really important.

What this amendment bill seeks to do is strengthen the current legal framework to provide additional protections to those workers who, unfortunately, have been left without vital protections to protect their entitlements. This proposed legislation seeks to address the key issue faced by many Australian workers, which is where companies may try to avoid paying their employees' entitlements, which can leave workers without their rightful wages, superannuation and other entitlements. In some cases, there is no legal recourse to recover them, and I've worked with many people over the past decade who've been left in dreadful situations as a result of the failure of the legal framework in this country to provide those adequate protections.

To address this issue, this bill proposes to expand the definition of 'entitlement' under the Fair Work Act 2009 to include not only wages but other employee benefits such as superannuation, redundancy pay and annual leave. This will ensure that workers are protected and have a legal right to claim these entitlements. This bill seeks to provide greater protections for Australian workers and ensure that they are treated with the respect and dignity that they deserve. This bill will make it harder for some employers to exploit workers or avoid their legal obligations and will provide greater recourse for workers who have been denied their entitlements.

This amendment bill also seeks to provide additional protections and flexibility for workers in relation to unpaid parental leave entitlements, superannuation entitlements and migrant worker rights. The bill also proposes to amend the Fair Work Act 2009 to provide greater flexibility for employees to take leave in shorter periods and to take up to 30 days of their unpaid parental leave flexibly. This will allow employees to take leave in smaller blocks, which can be particularly helpful for parents who want to gradually return to work after the birth or adoption of a child, which is just another way that we're increasing gender equality in this country.

A division having been called in the House of Representatives—

Sitting suspended from 12:04 to 12:15

This bill seeks to expand protections for all Australian workers to ensure they are treated with the respect and dignity they deserve. It will make it harder for employers to exploit workers or avoid their legal obligations, and it will provide greater recourse for workers who have been denied their entitlements. This legislation, as I mentioned earlier, will also be good for gender equity by encouraging greater access to parental leave, with flexible blocks of leave able to be taken. That is going to be particularly helpful for parents who want to gradually return to work after the birth or adoption of a child.

Importantly, this legislation provides additional rights to employees in superannuation entitlements by proposing to amend the Superannuation Guarantee (Administration) Act 1992 to require employers to provide regular updates to their employees on their superannuation entitlements, including the details of the contributions made on their behalf. This will help to ensure that employees are aware of their superannuation entitlements and can take action if they are not receiving their rightful contribution. Superannuation is, of course, a proud Labor legacy and we will always protect it.

Significantly, this amendment also confirms that migrant workers are entitled to the benefit of the Fair Work Act regardless of their immigration status. This will ensure that all workers in Australia regardless of their visa status are protected by Australian workplace laws, including the minimum wage, leave entitlements and protections against unfair dismissal, which I think many people would agree are very commonsense amendments. Of course every worker should be covered by the Australian workplace laws. I have worked with far too many people who have been denied their entitlements, who have been too afraid to speak up because of a lack of protections and a lack of clarity in the law regarding their coverage by Australian law, so I am very pleased to see that these amendments are going to come into place. These amendments regarding migrant workers come from the recommendations of the migrant workers task force. Unfortunately, migrant worker exploitation occurrences are far too common in Australian workplaces, so it's pleasing to see these recommendations are being included in these amendments.

Ultimately, this legislation is about providing greater protections and rights for Australian workers. I do want to acknowledge all the work that has been done over many years by a range of different organisations including unions and individual workers who been speaking up about what's been happening to them, which has enabled us to make these changes that will improve their lot.

One of the key issues that the bill seeks to address is underpayment of wages, which is unfortunately a widespread problem in Australia, with many workers being paid less than the minimum wage or having their entitlements withheld. The proposed changes to the Fair Work Act 2009 will provide greater protections for workers and ensure they are able to then claim their entitlements. I've heard lots of stories, from apprentices to workers in food manufacturing, about the withholding of wages and entitlements. I'm really pleased to see this bill address those very substantial issues. This bill, by expanding the definition of an entitlement to include not only wages but also other employee benefits such as superannuation, redundancy pay and annual leave, will ensure workers are protected and have a legal right to claim these entitlements, and that they can't be denied.

In proposing to amend the Superannuation Guarantee (Administration) Act 1992, we do see a greater protection around super which, as I mentioned before, is something that is a proud Labor legacy. I'm also proud, even though it's not a part of this particular bill, that we have announced that we as a Labor government will be instituting our payday superannuation, which means that workers will be paid their superannuation on the day they receive their wages. We've seen the underpayment of superannuation occur because of the nature of the way payments were able to be made, particularly to insecure migrant workers and other marginalised workers. I have a substantial number of those workers in my electorate, so I'm really pleased to see that this will be more money for workers in their retirement. This bill is going to make a big difference in making sure that people's superannuation in this country is protected.

This is a really commonsense set of amendments that we're dealing with, particularly in relation to confirming that migrant workers are entitled to the benefit of the Fair Work Act, regardless of their visa status. They work in this country, and workers pay taxes. They are part of our communities. It's only right that we are able to confirm this here and hopefully alleviate a lot of the suffering and exploitation that, unfortunately, I've witnessed myself and heard stories about in the past decade that I've been working in the labour movement, in the Migrant Workers Centre at Victorian Trades Hall and at the United Workers Union. So, I'm really pleased to be able to support this legislation that's before us today. I think it will make a really big difference to the lives of many people in this country.

James Stevens (Sturt, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023, and I commend the contribution from our lead speaker, the Manager of Opposition Business, who outlined the coalition's position on this bill, elements of which we are very supportive of. But the title of the bill—'Protecting Worker Entitlements'—is perhaps not the best summary of every element of this bill, particularly schedule 5, and I want to make a brief contribution on our various serious concerns regarding schedule 5.

The summary of that is that it expands the circumstances in which employees can authorise employers to make valid deductions from payments that are due to employees where the deductions are principally for the employees' benefit. Now, what exactly does that mean? And what would that apply to? Well, very clearly we're talking about, in particular, union fees. This bill creates a circumstance in which a union can change—and we all know that means increase—the fees they charge to an employee, which the employer may well deduct automatically from the employee's pay packet, which is the standard way that union fees are levied, without the authorisation or permission of the employee. If that is 'protecting worker entitlements', then I'll go he.

We absolutely oppose this element of this bill. First and foremost, the surreptitiousness of it is outrageous. As I said, in a bill that purports to be focused on protecting workers' entitlements—and it has measures in it that we support—to put in place this special little payback deal for the union movement, to allow them to up the fees on workers without telling them and without getting their authorisation to do so, is completely disgraceful and outrageous. It is also I suppose thoroughly predictable. It is just another one of these paybacks that this Labor government owes the union movement for all the support, particularly financial support, that they gave them during the election campaign.

These little things that are hidden in legislation under cosy titles like 'Protecting Worker Entitlements'—designed to take money away from workers and give it to the union movement, which will indeed provide a dividend to Labor Party campaign coffers into the future—are the sorts of things we see time and time again. These little changes are clearly on some kind of list the union movement has provided to the Labor Party, saying, 'Don't forget, these are all the things you need to do for us in exchange for the extreme financial support we provide you to get you into government.' It's a very cosy little pyramid scheme that's going on, and this is one of the best examples of it. And of course it's an example of putting the interests of workers last and looking for an opportunity to take money out of the pay packets of workers.

Make no mistake, what this does is say: 'We don't want the permission of workers to take more money out of their pay packets. We're going to change the law so that it is not required to say to an employee: "Hey, the union fee that we take out of your pay packet every fortnight is going up; are you okay with that? Can we have your permission to take more of your hard-earned money out of your pay packet and give it to the union movement?"' That's what has to happen at the moment. You need permission to take someone's money from them. It's not an unreasonable principle in this country, society and economy. The government want to change the law and say, 'No, the union movement can take money without authorisation, and can take additional money out of the pay packets of hardworking Australians without their permission,' which is absolutely appalling and outrageous.

I don't begrudge people having the free right to join a union, and I've said that there have been important things in decades gone by—particularly in the 19th century, which is a long, long time ago—of benefit done by the trade union movement. Obviously, we take very seriously the importance of workplace laws, workplace safety and workplace protections, and they are enshrined in our statutes. Some of the elements in this bill indeed lead to improved outcomes for the entitlements of workers, but this provision is absolutely disgraceful. It is absolutely appalling that a Labor government called the Labor Party, which purports to be for the working classes, are repaying their union masters by changing legislation to disadvantage workers and to put workers in a position where they can have money taken secretly from them without their permission.

What would be wrong with a circumstance where, if it's all very reasonable and sensible that the union movement have to increase their fees, they get permission from their members to do so? Why is that in any way an objectionable position? Why is it not the case that unions, before they donate the funds to political parties, should go to their members and say, 'Hey, all that hard-earned money of yours that you've paid to us, we're looking to give a lot of it to a political party—do you approve of that or not?', like shareholders have votes on remuneration of senior executives and board directors. Why is it that the hard-earned money of—and let's be honest—in many cases some of the lowest-paid workers in our society is used so frivolously by the union movement and, if this legislation passes, taken from workers in greater amounts without their permission. Why would it be that the union movement requires of the Labor Party, as part of a quid pro quo for the enormous financial support that they provide them, this ability to secretly take extra money from hardworking Australians without their permission? We all know that the more money that goes to the union movement, the more money comes back to the Labor Party through donations from the union movement. Not only is it payback for the financial support that the union movement give to the Labor Party but the Labor Party also clipped their ticket in this whole process anyway.

The union movement can surreptitiously take more money from workers without their permission, facilitated through legislation, which says you don't have to tell workers or get their permission to take more money from them. You just tell the employer, 'Hey, I want to take an extra five per cent going forward in union fees from all the following employees who are members of my union that work for you,' and with this legislative change the employer will need to abide by that ruling, taking the understandable chagrin of workers who might call the payroll department of the company and say: 'Why did I get less money this week? Why have you taken this extra money from me?' Well, the unions have increased their union dues and they don't need your permission to take it from you. That's why you're getting less money in your pay packet this fortnight—without your permission, that Labor government have legislated to allow the union movement to increase union fees and just take it from you without permission.

The good thing for the Labor Party is that they get a return on that because, as union funds increase, so does—as night follows day—the amount of money that the union movement can donate to the Labor Party to help them win elections so that they can come back into parliament and pass more laws that benefit the union movement. What a fantastic, virtuous circle it is! We of course abhor that principle and abhor this specific measure that says money can be taken from workers without their permission. It is a disgraceful proposition, and I cannot understand how anyone can say they are a member of a party called the 'Labor Party' when part of the policy platform that they're implementing is to try to surreptitiously and without permission take money from workers. What could be more the antithesis of what a party that is meant to represent the working people and the working classes should stand for.

Another element that we have covered is additional changes to the National Employment Standards. I appreciate the opportunities that we've had in the past to enshrine additional protections in the NES. That was certainly the case around certain leave entitlements that were put in place recently in this parliament. We have further changes to the NES. It is certainly appropriate that we have in the National Employment Standards the same entitlements that are established within the award structure. The Fair Work Commission has always adopted the recommendations that the NES should give a proper national standard of entitlement across a whole range of things, such as leave et cetera. We've had the chance to pass bills previously in this place regarding family and domestic violence leave.

Of course, the genesis of those provisions were decisions or determinations within the fair work process that applied to awards. Of course, we know that not everyone is on an award. Most people are not under an award structure, so the National Employment Standards are an opportunity to say that, if we are creating and applying entitlements for workers within the award structure and if they're good enough for people on the award structure, then we should expand them to anyone who is employed under Australian employment law. It's the purpose of the National Employment Standards to ensure that we have a situation where an entitlement for workers that we believe is due and proper, in the case of award determinations, applies equally to those not employed under awards. Paid family and domestic violence leave is an excellent example. It progressed. It was initially five days unpaid leave, but it has now become 10 days paid leave. It was good work through the Fair Work Commission process that applied that through the award structure. The benefit and the sense of it was properly and fairly identified through that process. Having seen it applied to the award system, there was no excuse whatsoever for not enshrining that entitlement more broadly across the National Employment Standards, so that it applied not only to those employed under the award structure but equally to those who are employed in any circumstance whatsoever.

I also note important provisions regarding superannuation that are addressed in this bill. My colleague the Manager of Opposition Business has made important contributions on those changes and how they will be impacting not just the workers involved but also more broadly the circumstance and the strength and the rigour of the superannuation system in our country.

I commend the Manager of Opposition Business's contribution on this bill. We have foreshadowed and outlined where we stand on elements of this bill and which elements we oppose. We'll be voting accordingly when divisions come upon this. With those comments, I conclude my contribution to this second reading debate.

Kylea Tink (North Sydney, Independent) Share this | Link to this | Hansard source

If there has been an abiding truth in my life, it is that almost anything can be achieved when an individual is driven by a strong work ethic and accepts responsibility for their own actions and when communities unite behind a common purpose to achieve a positive change for society. In this context, then, that it was with deep interest that I seriously reviewed and considered the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 which we find in front of the House today. While I believe there is much to agree with in this bill, as with many reforms on industrial relations I fear there is definitely devil in the detail when it comes to this legislation. I am most concerned about its potential impact on small and medium-sized business across Australia.

Growing up in the 1970s, I witnessed my parents working together in a family small business. They both worked extremely hard. Nothing was ever given freely or taken for granted, yet by striving to always operate a fair ship they were able to not only provide an incredible quality life for me and my siblings but also employ many others along the way, thus helping their families get established and subsequently grow. Fast forwarding to my own work experience, it began in earnest in 1992. I can honestly say I have always understood the importance of striving for a fair balance between employee rights and the needs of an employer or business. As a working woman in the early 2000s, I was fortunate to have an employer who supported my desire to continue to achieve extraordinary highs in my career whilst also being able to have a family. At times it was not easy. It required a level of commitment, patience and understanding on both sides, but inevitably, regardless of the circumstances and challenges, by working together as an employee and an employer we were able to find a way through our challenges. In this context, I am concerned that this bill will weaken that trusted and mutually respectful relationship between employee and employer as the emphasis of responsibility to make something work shifts significantly towards the employer and away from the personal responsibility I believe all employees should maintain.

According to the Australian Bureau of Statistics, any business with under 200 employees is considered a medium-sized business, while those with under 20 employees are considered a small business. By this definition, 98 per cent of businesses in Australia, or over 950,000 employers, are small and medium-sized enterprises. Nearly 70 per cent of small businesses in New South Wales are located in the greater capital city area, with the highest number of small business being found in the Sydney inner city area. Nearly 50 per cent of those are in my seat of North Sydney. Indeed, the area of North Sydney is the third-largest business centre in Australia and is home to organisations as large and as varied as Coca-Cola, Sony, Microsoft, the Sydney Morning Herald and the Nine Entertainment Company and as small as Morgan's cafe in Kirribilli, The Hunted in Cammeray and Lane Cove, and Radiance Hair in Northbridge. In total, there are also more than 2,000 small-sized building and construction businesses in North Sydney and over 660 registered not-for-profits, including Endometriosis Australia, the McGrath Foundation and Landcare Australia.

While the diversity of businesses here cannot be overstated, the reality is that in the last financial year over 90 per cent of them had a turnover of less than $2 million. In fact, 80 per cent of them had a turnover of less than $200,000. In this context, small businesses truly are the backbone of the Australian economy, employing around 45 per cent of all Australians and accounting for approximately 35 per cent of our economic output. What is often true of a small business is that they will not have a dedicated HR professional working for them on a day-to-day basis. Rather, many owner-operators will simply be working as hard as they possibly can to build the most successful business they can to provide not only for their own families but for the families that their employees support.

And herein lies the rub. Looking at the bill before us, it is a large piece of legislation which, if enacted in its entirety, claims to aim to protect worker entitlements, promote gender equality and improve fairness. But, I can't help but wonder about the fact that, while its ambitions may be sincere and admirable, how much of this revised legislation will actually ultimately help make the lives of small- to medium-sized business owners easier.

The bill seeks to drive change via six key undertakings. The first one is clarifying that a breach of the Migration Act would not affect the validity of a worker's employment contract. The second one is increasing the flexibility of unpaid parental leave to 100 days over 24 months, including allowing pregnant employees to take a portion of their unpaid leave in the six weeks prior to the birth of their child, removing restrictions on married and de facto couples taking more than eight weeks unpaid leave at the same time, and allowing each parent to take up to 12 months unpaid parental leave and request an extension of a further 12 months. The third one is to include a right to superannuation in the National Employment Standards. The fourth one is to clarify that the enterprise agreement will not continue to apply when the Fair Work Commission makes a replacement workplace determination in relation to the same employment. The fifth one is to permit employees to authorise employers to make regular deductions for amounts that vary from time to time. The final one is enabling casual employees in the coal mining industry to ensure they are not treated less favourably than permanent employees in terms of calculating and accessing long service leave.

By any measure, this bill is an omnibus. As I mentioned before, while there is much to welcome, I am also concerned about a number of elements that I feel will be particularly difficult for the 98 per cent of businesses I have previously spoken about to not only get their heads around but to actually manage. While I have no issue with either schedule 1 and 4 of this bill, which respectively relate to introducing new provisions in the Fair Work Act to clarify that a migrant worker in Australia is entitled to the benefit of the Fair Work Act regardless of their migration status whilst also facilitating minor amendments to confirm the common understanding of how workplace determinations and enterprise agreements interact, I do have concerns around schedules 2, 3 and 5.

Specifically, schedule 5 makes changes to the flexible nature of unpaid parental leave to make them consistent with the changes made to paid parental leave earlier this year. While these changes are to be welcomed, as someone who has had specific experience in trying to manage the staffing requirements of a small- to medium-sized business, when you have people both wishing to succeed professionally while also wanting to balance family commitments it is imperative that any change introduced here work equally and fairly for both employee and employer. In this context, I believe this legislation would be improved by ensuring there is greater onus placed on the employee to provide as much notice and specificity around their parental leave plans to their employer as soon as is practically possible to allow both the employee and the business to plan to manage workload appropriately. As we are all very aware in this place, we have not seen such a tight employment market in this country for years. With many business now reporting significant delays in terms of time taken to find suitable staff, I fear for small and medium businesses that, while this flexibility will undoubtedly be incredibly good for families, it may, in some circumstances, literally challenge the very viability of a small business going forward. The truth is you cannot simply lose an employee in the space of a month and hope to find a replacement to cover for them for an indefinite period of time in this current market. For this reason, why I applaud the government for thinking big and shooting for the best-case scenario, I would also urge it to consider the very real economic circumstances businesses are currently facing. In doing so, I believe the government would find that there is a need to temper the enthusiasm they have shown in this first iteration of the legislation.

Similarly, given the nature of this reform, I would encourage the government to specifically build in a formal review of the unpaid parental leave provision within the first six months of the implementation of the legislation to ensure government is fully aware of the real-world impact of this change. For any upside delivered by this reform for families, it will all be to no avail if a significant number of small- to medium-sized businesses subsequently fail as families enjoying leave can only return to a healthy employer, and that is the balance we must get right.

In schedule 3 then, my key concern is that yet again we have a piece of legislation that is expanding the responsibilities of the Fair Work Act and, consequently, the commission, with no clear understanding of how this expansion won't just add a additional layer to bureaucracy for businesses. As it currently stands, employees can pursue unpaid superannuation through the Australian Taxation Office, an entity which already has primary responsibility for ensuring compliance with superannuation guarantee and associated obligations. In this way, the ATO already has access to the relevant superannuation information, and it has extensive enforcement powers to effectively address noncompliance. My concern in this instance, then, is that seeking to include superannuation in the National Employment Standards will mean employees covered by the Fair Work Act will now have an additional enforceable right to superannuation through the Fair Work Commission. 'So what,' you might say. Well, as well-meaning as that sounds, as it currently stands, a business could find itself facing a claim from both the ATO and the Fair Work Commission, leaving business unsure of which direction they actually need to be facing.

My concerns in this area again would be overcome should the government be open to considering some amendments to the bill. Those amendments would include ensuring employers are not exposed to competing enforcement activity from two different regulators over the same matter, protecting employers that rely on ATO guidance, limiting the capacity of the ATO to pursue matters aired in the workplace system and limiting the capacity of the Fair Work Commission to deal with disputes over the operation of superannuation legislation. Ultimately, any amendment in this schedule must again seek to get the balance right—a balance where both employee and the employer can be as successful and have a clear pathway to negotiating or finding a suitable solution to a dispute.

Finally, we come to schedule 5, which provides details regarding proposed amendments to the legislation which would allow for amounts, varied from time to time, to be removed from an employee's pay packet without additional approval. In effect, this would mean it would be possible that an employee who may have previously granted approval for a deduction from the salary could quite literally find themselves taking home a smaller pay packet in any given month, with little to no notice regarding the change and no specific safeguard having been in place to ensure that an additional or increased payment didn't simply go through without scrutiny. By removing the requirement for an employee to ultimately stipulate exactly what money they are happy to have removed from their salary and under what circumstances, this legislation is removing the safety barrier that is an employee's right to query a change or an increased price prior to accepting it.

Some will argue that, once given, an approval should be taken for granted regardless of the dollar amount, as long as that deduction is still being acquired for the primary purposes in which the employee originally granted it. But, as someone who is very mindful that there are many out there who are literally counting every cent they earn, I do not believe it is in either the employee or the employer's best interests to cut a blank cheque for anyone. In this context, I believe this legislation should be altered to ensure employees require notification of any price variance by the service provider, be that up or down, and only with specific approval from an employee should that variation to the deduction be possible.

For many years now, Australia has maintained an enviable reputation as the land of the fair go, where people who aspire to create and build a better future for themselves and their families can succeed and were small and medium-size businesses are not just the backbone of our economy but are literally the lifeblood of our communities. For this reason, while, as I've said, there is much in this legislation to aspire to, I finish today by urging the government: please step back. Look at each element of this proposed bill critically to truly assess its potential impact on small to medium-size businesses. Please then come back to us with an amended piece of legislation that will ensure not only that workers can continue to thrive in our country but that they can do so because they continue to be employed by successful, productive small to medium-size enterprises. A big-business approach will not fit all, and it is imperative that this government refrain from trying to make it so.

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

I rise to speak on the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023. As a refugee who settled in south-west Sydney in the 1970s, at a time when migrant worker exploitation was rife and far more the norm than it is today, I'm glad to see more awareness for newly arrived migrants. In the past year, we have seen continued commitments to improving the employment law space specifically in reference to the enactment of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. These legislative amendments have brought about a paradigm change across the area of workplace bargaining and the approval processes involved therein. The protecting worker entitlements bill seeks to address a range of areas: migrant workers, unpaid parental leave, superannuation contributions, workplace determinations, employer authorised deductions and the coalmining long service leave scheme.

As you are aware, Fowler is a diverse electorate, with 52 per cent of the community having been born overseas. Australia will welcome a further 650,000 migrants this financial year, with conversations that Fowler will likely be the majority's place of settlement. This expected migration boom naturally leads to questions of vacancy, lack of infrastructure, living costs and employment, which our Fairfield City Council has previously raised. I raise these figures due to their correlation with the proposed amendments put forward by the government.

It's my understanding that this bill seeks to achieve three major things on a policy level: (1) relieve the fear of uncertainty for migrants seeking employment or in employment on where they stand in the Australian employment law system, (2) reduce the exploitation of migrant workers and (3) result in a positive impact for migrant workers. According to the explanatory memorandum, irrespective of their immigration status, migrant workers would be entitled to access the benefits enshrined in the Fair Work Act. I perceive this as a significant and positive outcome for migrant workers within Fowler, and I welcome this development.

For those who have gained the right to work, you can appreciate that there may be difficulty in navigating a new culture and understanding their rights and obligations, particularly what exploitation could look like. The sad reality is that migrant workers may not recognise workplace exploitation when faced with such experiences, as everything in a new country would feel foreign to them. Exploitation could be in the form of underpayment of wages, working ridiculous hours, unsafe working environments and discrimination, bullying and harassment. It would not be obvious to migrant workers what workplace practices are legally acceptable or unacceptable.

In the Migrant Justice Institute's submission on this bill, they note that their 2016 survey of over 4,000 temporary visa holders found that at least a third were earning less than $12 an hour. An ABC report published today revealed the disturbing data within a report by the Grattan Institute that between five per cent and 16 per cent of employed recently arrived migrants are paid below the national minimum wage of $21.38. The Grattan Institute report published on 7 May 2023 further revealed that young migrant workers between 20 and 30 years old are more than six times more likely than 30- to 40-year-olds to be underpaid by more than $3 per hour vis-a-vis the minimum wage. To put this into perspective, these individuals could be your son, daughter, brother or sister who are being underpaid. This is literally wage theft. How are these acceptable employment standards in Australia? If Australia is opening its doors to migrant workers, we have a duty to ensure there are adequate facilities, infrastructure and measures for the protection of their rights.

A case that received media coverage in 2021 surrounded a cheesecake business chain with a shop located in the Fowler electorate. The owners were accused of human trafficking and slavery, with alleged threats of exploitation made to an employee being detained to work illegally. It was reported that the individual, who worked at the cake shop between 2015 and 2017, was unpaid. When this story was released, it was a major shock to our electorate that such an atrocity could occur within our neighbourhood in this day and age. This begs the question: how could Australian laws have protected him better? Now, this is an isolated and sensationalised case; I understand that. But often, like I said before, enough data about migrant workers' exploitation will not be readily available. That is why it's scary to think about.

A further concern is this: what about migrants without appropriate working rights and their risk of getting exploited in the workplace? I'm talking about individual asylum seekers in Australia holding short-term bridging visas, pending an outcome, such as those who are on temporary protection visas. Today, migrant workers within the Fowler electorate include individuals holding temporary protection visas who are of diverse linguistic backgrounds.

The Albanese government has since introduced a subclass 851 resolution-of-status visa to convert a temporary protection visa to one for permanent residency. There are also migrant workers on skilled visas. While the government has sought to amend this, as flagged by the Western Sydney Migrant Resource Centre it's not a guarantee that all TPV holders will definitely be accepted into this new stream. Acting CEO Mohan Gunasekara told our office that there are still inconsistencies on the ground with the TPV visa, with not all its holders having working rights. He said that it depends on the circumstances, and the circumstances are not clear.

While these migrants live in limbo they are at greater risk of exploitation. This is because their visa does not give them working rights. These individuals may feel pressure to work undocumented to have a means of income. This practice would push them to the edge for employment that is not 'on the books'. We've had a number of constituents call into our office to seek assistance on whether their bridging visas will allow them to work. Time and time again, they were disappointed that they do not have a lawful right to work. Of course, I could not be of any further assistance to them in this regard. As you can imagine, these individuals' hands are tied until they have been processed by the Australian government.

Fowler is and always will be a settlement city, and we are always welcoming of migrants. Our roots began post World War II, with German and Italian communities settling here. We then had the Southeast Asian wave in the seventies and eighties, followed by the Latino and eastern European communities in the 1990s and 2000s, and today we welcome those from Africa and the Middle East. We are a multicultural melting pot.

Naturally, I'm concerned with the adequacy of the legislative measure to address potential workplace exploitation. I iterate that if more migrant workers are to settle in Australia, particularly within the Fowler electorate, it is our duty to ensure that they are properly protected. Whilst I've raised concerns on the exploitation of migrant workers, I acknowledge that the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 is a step forward. This legislative amendment sends a strong message. Migrant workers are to be treated as normal Australians with parallel working rights. Exploitation is not acceptable, and things must change. But we can do so much more.

I invite the government to consider the broader implications to best protect migrant workers. One, does this bill address the blurred lines of migrants without working rights and their risk of exploitation? Where do they stand in this interplay of the Fair Work Act and the Migration Act? Two, will there be a correlating amendment to the Migration Act 1958 to address these issues? The government should consider a legislative amendment within the Migration Act 1958 to clearly stipulate that a migrant worker's visa will not be in jeopardy of being cancelled if they are exploited by their employer to work unlawful hours beyond their working rights. Three, will there be greater resources, like employment opportunities and infrastructure, to support the influx of migrant workers? Four, in cases where migrant workers have appropriate working rights, will there be amendments to accompanying labour law frameworks outside the Fair Work Act to protect them? This was specifically raised in the submission by the Migrant Justice Institute. Five, are we doing the absolute most we can to set up our migrants for success, such as offering social services, English classes and trauma counselling for those who have fled war or humanitarian crises? It is an absolute necessity to ensure we nurture and help them in settling into their new life in Australia.

I acknowledge that the above suggestions will be part of an ongoing commitment and look forward to the government's response to them. This will not be an overnight job. However, I propose that greater certainty be provided in the proposed provision to bring the objective of allowing migrant workers to enjoy the benefits of the Fair Work Act to fruition. Accordingly, I propose that an additional statement be inserted at the end of subsection 40B, becoming subsection 40B(2). To avoid doubt, this subsection would ensure that a breach under the Migration Act 1958 or an instrument made under it does not affect the validity of a contract of employment for a migrant worker under the Fair Work Act 2009 and that the migrant worker will be entitled to the rights governed by the Fair Work Act.

I trust that the amendment proposed above will more greatly serve the mission of protecting migrant workers in Australia and open new doors for people like them—like me.

Sitting suspended from 12:59 to 16:0 1

Andrew Leigh (Fenner, Australian Labor Party, Assistant Minister for Competition, Charities and Treasury) Share this | Link to this | Hansard source

I thank all members for their contributions to the debate. In particular I acknowledge the contributions of the members for Bradfield, Chisholm, Sturt, Fowler and North Sydney. I also make mention of the Senate committee for their tabled report and recommendations from their inquiry. The committee recommended that the bill be passed.

This bill delivers on the government's commitment to protect migrant workers from exploitation. It provides stronger access to unpaid parental leave so families can share work and caring responsibilities. It implements the government's election commitment to insert a right to superannuation in the National Employment Standards. It clarifies the operation of the Fair Work Commission workplace determinations and enterprise agreements. It streamlines employee-authorised deductions, to reduce the administrative burden on employers and employees. It ensures casual employees working in the black coal mining industry are treated no less favourably than permanent employees for the purposes of accrual, reporting and payment of long service leave entitlements within the coalmining long service leave scheme.

I note that a number of issues were raised in the debate. The member for North Sydney discussed the issue of notice periods for unpaid parental leave. The government gave serious consideration to what appropriate notice periods should be in developing the bill. We heard submissions from stakeholders who wanted to lengthen notice periods and from others who wished to shorten them. The government considers that the existing notice requirements that are preserved by this measure strike the right balance between stability and certainty for employers and flexibility for employees. The member for North Sydney also noted some concerns about how the entitlement to superannuation and the National Employment Standards would interact with the functions of the Australian Taxation Office. The government carefully consulted a wide range of stakeholders when drafting these provisions. The government considers that these provisions strike the right balance between empowering workers to pursue their own unpaid superannuation and ensuring that they do not interfere with the Australian Taxation Office's important regulatory functions.

I note the important contribution of the member for Fowler about the rights of migrant workers. The government agrees that it is essential to put in place appropriate protections for migrant workers. This bill is an important step in ensuring worker protections apply to migrant workers. Further tranches of reform throughout 2023 and 2024 will further strengthen protections for migrant workers. I note the member for Sturt's contribution regarding amendments allowing variable deductions. The member for North Sydney expressed similar concerns. I can reassure both members that this measure is intended to allow employers and employees to flexibly agree arrangements that suit each and will have appropriate safeguards in place to protect employees.

This bill builds on the strong foundation of the reforms in Secure Jobs, Better Pay to help deliver a fairer and more equitable workplace relations system. Once again, the government thanks all members for their engagement on the important reforms in this bill.

Bill read a second time.

Message from the Governor-General recommending appropriation announced.