Paul Fletcher (Bradfield, Liberal Party, Shadow Minister for Government Services and the Digital Economy) Share this | Link to this | Hansard source

Under standing order 143, I move:

That the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 be referred to the Standing Committee on Employment, Education and Training for consideration and an advisory report by 1 February 2024.

For the benefit of members, I want to explain the motion that I'm moving. I'm moving this motion, as I've said, in accordance with standing order 143. This standing order provides for a motion concerning a bill to be referred to the Federation Chamber or a committee after the first reading but before the question on the motion for the second reading is put—that is, before we conclude debate on the second reading. Clause (b) of this standing order allows for the motion to be moved without notice and allows for a bill to be referred to a committee for an advisory report. The objective of this motion is to seek the agreement of the House to refer the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to the Standing Committee on Employment, Education and Training for consideration and an advisory report.

In the intervening time between yesterday, when I last moved a motion concerning this bill, and now, there's been a crucial development. This bill has finally been made public, and, on this side of the House and indeed in businesses all around Australia, it's now possible to begin considering, line by line, the contents of this bill. To the surprise of nobody who has observed the career of the Minister for Employment and Workplace Relations, who is now sitting at the table, over many years, his smooth assurances over a number of months are entirely unsubstantiated by the grim and troubling detail which lards this bill from page to page—all 278 pages of it. For those who find the bill itself not sufficient to occupy them, the explanatory memorandum is 521 pages long. This might possibly be amusing if it were not for the grim reality that businesses all across Australia, including small businesses, which don't have a human resources department, which don't have industrial relations professionals, will now all be required to get across this extraordinarily complex detail.

The text of this bill was made public only yesterday and unless you're one of the very few people who had the opportunity to see or be briefed on parts of it before its introduction—and if that were the case then you were subject to a nondisclosure agreement—you did not have the chance to see any of this before the minister introduced it in the parliament yesterday. This is, on any view, an extremely detailed and extremely complex piece of legislation. It is not the very modest bill which the minister gave a series of smooth but we now know to be entirely meaningless assurances about in a range of venues around Australia. On the contrary, it is very clear that this bill will have far-reaching consequences for Australian workers and the Australian economy; for gig workers; for labour hire companies; for tradies; for those working in the digital economy; for independent contractors, amongst others; for Australians who want to be their own boss and appreciate the opportunity to be their own boss, to determine how they provide their services and to whom they provide them; for Australians who appreciate the flexibility of advertising their goods or their services over a digital platform and have flocked in large numbers, over the last decade or more, to do just that. This bill signals the intent of this government to block Australians exercising those choices.

The process which this minister and this government have adopted in bringing this bill forward has been nothing less than a legislative smash-and-grab raid. The details of this legislation were kept quiet. They were concealed from the Australian people until yesterday. The minister now wants to force this through the parliament without giving members the opportunity to properly consider and understand the complexities of it. When the minister spoke yesterday—and I'm sure he'll say the same thing again today—he said: 'There are several weeks in which you can give your speeches.' Let's be clear: the detail and complexity of this bill, which it has taken the government many months to formulate, requires a similar amount of time for parliamentarians to responsibly do their job on this side of the House, and I include the crossbenchers within that. It requires appropriate time to consider the details and to understand the full complexities of what's proposed. There are well-established forms, processes and mechanisms in this House to do that, and one of those is to have a committee which can inquire into the matters which are of great concern to this side of the House.

The minister may say—in fact, I predict the minister will say—that this is just typical Liberal rhetoric. Well, let's find out whether that's true or not. We certainly don't believe it is. We believe that the concerns of businesses around the country are very well founded, and we think their level of concern is only going to go up when they study the detail. But, if we as parliamentarians are properly to do our job in assessing the impact of this complicated, economy-wide piece of legislation, then we need to be informed by the views and feedback of those who will be affected by it on a day-to-day basis, in running small businesses, in running businesses of all kinds, in serving customers, in providing their services as independent contractors or as owner-operators of trucks. We've now discovered that this bill sees the government seek to return to what was a disastrous piece of policy when perpetrated under the previous Rudd-Gillard-Rudd government, the so-called road transport safety tribunal, which created enormous misery amongst owner-drivers and, again, reflected the basic philosophy of this government—that they do not want to allow Australians to exercise their own choices about how they engage in the workforce, engage in the economy and provide goods and services.

If there's one thing we could all agree on—there is very much that we don't agree on—it is that the issues here are complex. They are complicated. They involve detail. They involve understanding of practices within businesses, within the economy, in the way that people choose to take to market the goods and services that they want to offer. If our parliament is to do its job effectively, then it is appropriate that there be time taken to consult with those affected and to consider in a systematic way the merits or otherwise of what is proposed. That is precisely why we have a system of committees in this place. That is precisely why the standing order under which I am moving this motion provides for a bill to be referred to a committee: so that these matters can be scrutinised, so that witnesses can be called, so that questions can be asked and so that a proposition being put by one side of the House—which is to say, 'There's nothing worry about here; these are only modest changes'—can be tested. Certainly we approach that proposition with enormous scepticism, but there are forms and processes of this House which are established for very good reason, to allow issues of this kind, contested issues, issues of fact, to be tested and to allow parliamentarians from all sides—those forming a committee—to hear from those who are involved and have a stake. Of course, that would include unions and workers of all kinds, as it should. It would include businesses of all kinds. It would include independent contractors, owner-drivers of trucks, operators of digital platforms and consumers of goods and services provided conveniently and efficiently over digital platforms. That would allow questions to be asked about whether there is any defensible distinction—as the minister has sought to claim—under the criteria contained in the draft legislation, between the treatment of Airtasker, on the one hand, and Mable, on the other hand.

These are complicated issues. We ought to have an appropriate process so that parliamentarians—those in this place who have to vote on this legislation—can hear from subject matter experts, from people who are involved in operating and providing services over digital platforms, from those working in the labour-hire field and from those in industries which are of enormous importance to Australia's prosperity, such as agriculture, resources, finance and so many other sectors, like the health sector, which is so critical. Parliamentarians in this place should have the opportunity to hear from people operating in those sectors about how they understand this bill to affect their operations. None of that has been possible, because of the very undesirable way in which this minister, and this government, has chosen to take forward deliberations and the development of this bill.

When speaking at the National Press Club earlier this year, the Leader of the House said:

The consultative approach that we have applied to the Parliament itself and to the way we have governed is of itself not just a difference in the way Government functions.

So the Leader of the House, the minister at the table, has been very happy to congratulate himself and to congratulate this government on what he is pleased to describe as a 'consultative approach'. I can say to the minister that it is very clear that there are many businesses and many people around Australia who certainly do not feel they've been adequately consulted. There are many people who are wondering how you could describe as 'adequate consultation' that which is conducted with the extensive use of non-disclosure agreements. There are many people who would be saying, 'What exactly are you trying to hide when you say, "We're only going to tell you about this legislation that we're proposing to introduce if you sign a non-disclosure agreement so you can't talk to anybody else about it"?' Amongst the people who would rightly be asking that question are all the people who sit in this House, who are required to deliberate on this matter and to cast a vote.

Because the processes which have been adopted by this government to date are highly undesirable, what we are seeking to do on this side of the House, in good faith and with a commitment to the proper operating of this parliament, is to put forward a motion which would establish a committee, through a process which is contemplated under the standing orders, so that this parliament can do its job properly and parliamentarians can do their jobs properly.

We may hear statements from the minister about urgency and how quickly this all needs to be dealt with. Let's be clear: on this side of the House, where appropriate, we have absolutely been ready to deal with matters that are genuinely urgent. We did so just in the last sitting week with the Telecommunications (Interception and Access) Amendment Bill 2023. But we will not stand for this government treating the parliament, as it routinely does, with disregard for its rules, its norms and its conventions, including the convention as to the process which is normally followed when a piece of legislation is introduced and time is allowed for parliamentarians to understand what is contained in it before they exercise their vote in relation to it.

We are consistently seeing this government showing disregard for the rights of members and showing disregard for parliamentary accountability, transparency and scrutiny. We saw exactly that disregard in the comments made by the Leader of the House yesterday in relation to the motion that was moved by the opposition. According to the Leader of the House, it was somehow outrageous that the opposition would ask that debate on this bill be postponed until such time as members had had a chance to properly consider its terms. Of course, he didn't hesitate to go to the threat of guillotining debate. He sought to argue to this House that the effect of what the opposition was proposing was that he would have no choice but to take advantage of the hand crafted gag powers that he enthusiastically gave himself last year.

The fact is that there are options open to this House to ensure that there is proper scrutiny of the bill which is before the parliament. Australians would reasonably suspect that the legislative smash-and-grab tactics that are being used here are being used for one reason solely, which is to conceal and to try and minimise proper scrutiny. What we are seeking to do is put forward a motion which would allow for appropriate scrutiny. This committee would be free to convene public hearings, it would be free to invite submissions, and it would then provide this House with an advisory report, which would assist in informing members as to the merits or otherwise of this bill. It would enhance the consideration by this House of the bill, rather than undermine it, and of course such work would be entirely separate to the work of a Senate committee, should one be established. I do therefore wish to commend to the House the merits of the motion that I am putting. This is about allowing members to be properly informed. The time frame that's being proposed would allow the House to come to substantive debate and to a vote relatively speedily. We accept the government's proposition that it has a legislative agenda it needs to deal with. But what the government needs to respect is the importance of members of this House having the opportunity to deliberate in an informed fashion. That would be assisted by the motion that I'm moving.

Milton Dick (Speaker) Share this | Link to this | Hansard source

Is the motion seconded?

Kevin Hogan (Page, National Party, Shadow Minister for Trade and Tourism) Share this | Link to this | Hansard source

I rise to second the motion moved by the Manager of Opposition Business to refer the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to the Standing Committee on Employment, Education and Training. As the Manager of Opposition Business just said on legislation that goes through this parliament, there are lots of precedents set by what the Manager of Opposition Business has recommended in this motion here. As he also stated, this legislation is exceptionally complex and exceptionally technical. The minister yesterday said there's going to be a great opportunity to debate this within the chamber. Yes, that is part of the process and an important part of the process. But referring this to a committee allows a lot of stakeholders to have added opportunity to air their concerns, to ask questions and to seek clarification about how it may affect their industry and/or their business. I think this is a very important reason that we do this, especially, as I said, for legislation that is exceptionally complex and exceptionally technical.

I do make the point that the minister said this is just a modest proposal on which they consulted widely. I would say, that, when this minister says 'modesty', normally it implies that he's overreaching. When he says 'consulting widely', it might have been within the union movement but definitely not necessarily with all other stakeholders. There have been some comments made about this, which I think, again, reinforce the need for this to be referred to a committee. If productivity is going to be lower, costs to businesses and families are going to be higher. We're going to be less competitive as a country. There will be more red tape, more regulation and more compliance costs. To support the fact that we need to refer this to a committee, I want to read to you a couple of comments that have already come out from people about their concerns with this legislation. These aren't my concerns; these are concerns from other people, which I think support the fact that we need to refer this to a committee.

Tanya Constable, the CEO of the Minerals Council of Australia, said, 'This is jeopardising the nation's future.' She, in fact, said:

Let's not sugarcoat it. These industrial relations changes are some of the most extreme interventionist workplace changes that have ever been proposed in Australia.

If that's the case, from a really important stakeholder, it supports the fact that this should be referred to a committee where some of these concerns and issues can be raised. Another stakeholder, Jennifer Westacott from the Business Council of Australia, said:

This will only add confusion and costs, while limiting the opportunities for people to get jobs with the flexibility they need.

Andrew McKellar from the ACCI, the Australian Chamber of Commerce and Industry, said:

The only loophole this bad legislation is looking to close is that of plummeting union membership.

…   …   …

If you are a service provider and want to advertise online, prepare for unemployment.

It's going to make you worse off.

The Master Builders Association has said: 'The worst fears of the building community have been realised with the introduction of this industrial relations bill. It takes a sledgehammer to tradies right across the country.' The Australian Industry Group chief executive said:

The Government is proposing major changes to core aspects of our workplace relations system.

These are just some comments. This has only just come out and there are some major issues and concerns that are being asked about.

This chamber and this parliament should give more opportunity to stakeholders through a committee process to air their concerns and ask their questions. Matthew Addison from the Council of Small Business Organisations Australia has said the changes would require every business to dedicate more resources, time and money towards trying to understand and implement onerous new obligations. The minister himself has made the comment that this will see costs increases, whether across food and/or transport. The NFF have come out and said:

… this is a bad bill which will make it harder and more costly to run a business in this country.

These changes aren't a genuine attempt to improve Australia's industrial relations laws, they are just a way for the Government to gift more power to the unions.

By adding union-driven layers of red tape to our workplace laws, Minister Burke will leave a legacy of sluggish productivity and higher costs for consumers.

The minister and the government are saying: 'There's nothing to see here. This is good legislation that is going to make us a more productive and better country, better for workers and better for everyone involved within the IR scheme of things.' If that's the case, then the government and the minister should have nothing to fear and nothing to hide from a parliamentary committee examining this in more detail.

The unions are very, very happy with this, but every other stakeholder that I've spoken to in the last 24 hours since this has come out has raised massive concerns. We've heard some of the comments that they've made. They think this is going to be some of the most disastrous legislation they have seen for their business and/or their industry in the history of Australia. That was one comment. That is a very serious opinion and accusation to make about legislation. I hope the minister and the government don't refuse this referral. I hope they support this being referred to the appropriate committee to undergo extensive stakeholder engagement throughout the country to address some of these fears. If the minister is right when he says that these fears are unwarranted or just a scare campaign then he has nothing to worry about with a committee inquiry. When those industry stakeholders, small businesses or big businesses appear before this committee and ask their questions to get clarity about what this regulation means to their industry and/or their business, if there is nothing to worry about and there is nothing to hide it will be a very healthy committee process and everyone can say, 'We misunderstood the legislation and we are all happy now.' That's what the minister is saying. If that's the case, let's go ahead with the committee inquiry, let's ask the questions and let's do the extensive stakeholder engagement.

The other side of this is what industry's fears are, what small businesses' fears are, what medium-sized businesses' fears are and what big businesses' fears are: is this just a power grab by the union movement that has been given to them by the minister? If that's the case, I can understand why he wouldn't want extensive engagement. I can understand why he wouldn't want ministers and members from all sides of parliament to be appearing before stakeholders who are asking specific questions, such as: Does this mean X for my business? Does this mean that I will have to do this for employees? Does this mean X for my legal costs and compliance costs? What do I have to do as a business owner and operator? If it does mean that then I understand why he won't want to do it.

If the government votes this down and doesn't want to do this, I would say to the Australian public and to Australian businesses—small, medium and large—everything that you fear about this bill is true because the government does not want public accountability and it does not want a parliamentary process and a committee process that is going to expose all the dangers that people think are in this bill.

The vote today will be interesting. Again, I reiterate: the government should be happy to go ahead with what is a precedent that has been set many times in this parliament over many, many decades for a bill that is so extensive and technical. There are lots of precedents for this. So I say to the Australian business community and every small-business owner in this country that, if this government votes down referring this to a committee to get more extensive clarification then every single fear you have about this bill that it is just a power grab by the union movement, given to them with great glee by the minister, is true.

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

Before I start, I don't think the motion has been handed in.

Milton Dick (Speaker) Share this | Link to this | Hansard source

I will ask the Clerk if I can have a copy of the motion.

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

We have it now. Can I have a quick look?

Kevin Hogan (Page, National Party, Shadow Minister for Trade and Tourism) Share this | Link to this | Hansard source

Happy to help; give us another problem to solve!

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

And there is the clincher: 1 February 2024. That is what this is all about. This is not about a committee. This entire motion is about delay. When I introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill, I made clear that there are three things that people do when they have no confidence in an issue: they complain about the consultation, they talk about something that the bill is not or they ask for a delay. And now, for the second day in a row, the Manager of Opposition Business has come in here formally to get us to vote for delay. It's quite interesting. He'll run off now because he is meant to prepare a speech on the bill.

I've never seen someone so reluctant to deliver their own speech on a piece of legislation, because the one thing that won't happen if this were to be carried—and this makes me a little bit tempted—is we would all be spared a speech by the Manager of Opposition Business. It wouldn't happen. But interestingly, he has chosen the time of day to move this. Instead of moving it yesterday, he has chosen to move it now, which means we can't have the division until after question time because we are in the no-divisions period right now. What will actually happen is he will probably end up being halfway through his speech on the bill when we vote on whether we should hear the second half after question time and after the MPI today. That is the process we are going to have.

He went through a number of issues about the consequences. The consequences that he wants are for every loophole to remain, and every extra day they can get every loophole to remain is a good day as far as they're concerned. As I say, this is not about whether or not it goes to a House of Representatives inquiry. They know full well that the stakeholder organisations they just quoted don't want to have to deal with and make submissions to and appear before two separate inquiries. That is why, on every piece of legislation, we have always had the convention that we have a single committee process here, which ordinarily is done in the Senate but is sometimes done through joint committee. That is why House of Representatives inquiries don't tend to deal with legislation but deal with issues. The reason is really simple: because otherwise you just put a burden on every stakeholder organisation to have to duplicate. It is parliament creating red tape for every single stakeholder organisation, where they need to go through the exact same process twice, once for the people who sit on green chairs and then again for the people who sit on red chairs.

Although the Manager of Opposition Business in his speech refers to 'the process that is normally followed', the process that is normally followed is not what he is proposing right now. The process that is normally followed is these inquiries are held through the Senate inquiry process for good reason: to avoid that form of duplication. That process will happen. They haven't set it up yet, but fair bet they will set up something this week and fair bet Senator Cash will do exactly what the Manager of Opposition Business just did, which is the critical amendment won't be for the form of inquiry. The critical amendment won't be to the issues that are being dealt with. The critical amendment will be: how long can we delay this?

Well, the delay they're talking about carries a cost. The delay they are talking about carries a real cost: a cost in worker benefits, a cost in how long you let underpayments go on and, for some sections of the act where there are fixed start dates, actually crunching the time between the legislation potentially being proclaimed and the start date. To delay the process of the legislation when some parts of it have fixed start dates in fact creates a crunching of the time for the compliance burden for small business. For anyone who might have to reorganise some part of their business, based on the legislation, it makes the situation much, much tougher, because the long time frames that have been put there in the legislation disappear because of the political tactics of an opposition that sees a benefit for workers, and their instinct is this: can they stop it; and, if they can't, can they at least delay it?

This legislation does not have the Fair Work Commission going out and creating new standards above what Australia has already decided should be normal minimum standards. What it does is say that, where, because of loopholes, workers are missing out on the minimum standards that would ordinarily be applied in Australia, we should close those loopholes and protect those workers.

Those opposite still, to this day, have not defended a single one of the loopholes. So I say to those opposite: let's start the debate, but start the debate honestly. Don't start the debate with 'Can we have a delay? Can we do something we never do for any other bill? Because it's about the rights of workers, we'd just like to put it off for a bit longer.' Defend the loopholes if you want to keep them open. If you think it's reasonable, and maybe you do, that people who work in the gig economy, because there are not technically employees, have every single one of their workplace rights fall off a cliff and have none of the rights they would have if they were an employee—if they think that loophole is fine, then defend it. Have the debate. For all the talk of secrecy, what we're advocating is an open debate, on the floor of the House of Representatives, which as elected representatives is our job. To those opposite: don't come here with some technical excuse for a delay; do your job.

We've been talking about the issues in this bill for years in this House. The concept of gig workers having no rights at all, no minimum standards at all, was an issue in the last term of government. I remember, here, where I stand now, my predecessor in this portfolio having no answer to the concept of whether there should be some workers who don't even have the guarantee of the minimum wage and just said, 'It's complicated.' It's a bit more than complicated for someone who's trying to make ends meet, running red lights and trying to drive an extra lane between the official lane of the traffic and the parked cars, knowing that if at any moment a car door opens they'll be lying underneath the traffic instead of riding through it. It's a bit more than complicated for them. But, if you think the loopholes of no minimum standards for those gig workers are fair, then start the debate and defend them. Defend them if you think it's fair that there are casuals who are working identically to permanent workers, and some of those casuals want to switch to a permanent job but have no rights to be able to guarantee that transfer.

We had someone in the gallery yesterday who'd been working 30 to 40 hours a week for something in the order of six years, wanting to transfer—clearly eligible, on the face of it, for it to be a secure job—and the employer refusing to do it. If you think that loophole's fine, then come to the dispatch box during the debate and defend it. Explain why it's okay for workers needing some sort of job security because their rent's not casual, the bills they have to pay aren't casual—and try getting a mortgage if you've got a casual job. For those workers who want to transfer, who, instead of loading, would rather have the security of guaranteed hours—if you think the loophole's fine and they shouldn't have that right, then start the debate and defend it. Don't keep looking for excuses to avoid the debate.

Similarly, if you think enterprise agreements matter at all—there were all the arguments when we talked about multi-employer bargaining last year, and those opposite kept coming forward and saying, 'No, the best form of agreement is an enterprise agreement.' But then they want to protect a loophole where an enterprise agreement is agreed to and every single rate of pay can be undercut by the next person through the door so long as they're employed by a labour hire firm and not by the host. So everything that was agreed to falls away because of a loophole. These loopholes have been allowed to exist, without the parliament acting, for a decade.

There is no excuse for further delay. There's no casual worker wanting more security and saying 'Can you please wait?' There's no gig worker saying, 'I love this because I get no minimum standards.' There's no-one being underpaid from an enterprise agreement who likes the lower rate of pay. Those opposite might be addicted to the loopholes; we're not and we should start the debate on closing those loopholes today.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the motion be agreed to. There being more than one voice calling for a division, in accordance with standing order 133 the division is deferred until after the discussion of the matter of public importance.

Debate adjourned.