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

The question is that the amendments moved by the Leader of the House be agreed to.

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

Much of the content of the amendments that are before the House now has been made public as it's been developed and negotiated, particularly with some key business groups. It was stated earlier that the amendments have been in the House since 1.30. They've been in the House since midday but were moved just before 1.30, when 90-second statements commenced. We've continued to consult following introduction of the bill, as we did with workplace relations legislation last year, and many of the amendments arise from that consultation. I'll deal with them in groups.

The first are the amendments to casual employment. These are the amendments that were negotiated with the Australian Hotels Association and publicly welcomed by the Pharmacy Guild. The government's welcomed stakeholder feedback where there were genuine and practical amendments to help clarify the intent of the reforms, and I want to commend the positive engagement from business groups—in particular the Australian Hotels Association. We've listened, and these amendments further clarify that a person who works a regular pattern of work can still meet the definition of a casual employee. We're providing additional certainty for businesses and for workers who prefer regular casual employment, and we're also allaying any concern about civil penalties from mistaken misclassification.

We're also repealing the existing residual right to request casual conversion in the Fair Work Act. This amendment clarifies that eligible casual employees who wish to change to permanent employment can do so through the new employee choice pathway. This will ensure arrangements are clear and simple for business, particularly small business. These amendments also should once and for all end the claim that this bill could in any way force somebody who did not want to convert from casual to permanent to do so. It is a voluntary system that is put in place, and these amendments make that plain.

On closing the labour hire loophole, one of the key arguments made by business groups was that there was concern about whether or not the legislation had unintentionally caught service contractors. The provisions were never intended to apply to service contracting, as is reflected in the explanatory memorandum to the closing loopholes bill. I want to acknowledge the engagement with the Australian Resources and Energy Employer Association, AREEA, and Professor Andrew Stewart, who had raised concerns and called for an amendment of this form. However, to make this even clearer than it was in the explanatory memorandum, the government amendment ensures the Fair Work Commission cannot make an order where work performed for a host is the provision of a service rather than the supply of labour. These amendments expressly provide that the Fair Work Commission must not make an order unless it is satisfied that the work is not for the provision of a service rather than supply of labour; delete the words 'wholly or principally' from the multifactor test, providing further certainty on how the multifactor test will operate; and clarify the termination entitlements for a labour hire employee covered by a regulated labour hire arrangement order. The amendment is a commonsense way of cutting red tape for business and simplifies leave entitlements while still preserving the government's policy intention.

Further amendments safeguard the operation of regulated labour hire arrangement orders from avoidance behaviour once they are made; ensure the continued operation of regulated labour hire arrangement orders where there's a change in commercial arrangements for the supply of labour or where a host business makes a new enterprise agreement; and ensure orders are effective and are able to capture all the relevant parties in complex labour hire arrangements, including for arrangements as part of a joint venture or common enterprise.

As the clock winds down, I should make clear that I will, as is provided in the resolution, be making sure that the time for this goes beyond the 20 minutes allocated.

We've listened on employee-like reforms, we've listened to platforms, and we appreciate the valuable consultations with organisations such as Uber, Menulog and DoorDash. These amendments ensure the Fair Work Commission sets minimum standards in a way that is fit for purpose for the unique nature of digital platform work. The amendments clarify the minimum standards objective, including—and I might just seek the call again—

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

The question is that the amendments be agreed to, and I give the call to the Leader of the House

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

by requiring the Fair Work Commission to take into account that workers may work on more than one platform at a time—multi-apping—and consider the impacts standards would have on users of platform services and on business costs.

The amendments require the Fair Work Commission to publish a notice of intent before setting minimum standards for employee-like workers and to genuinely engage with affected parties. Further guardrails will provide greater certainty. The amendments limit standards relating to penalty rates, payments before and between accepting engagements, and minimum periods of engagement to where it is appropriate for the type of work performed. The amendments provide further assurance that employee-like workers to whom a minimum standards order applies are not employees of any person in relation to that work.

We're also ensuring that the new definition of employment commences on 1 July 2024, the same time as the employee-like reforms. The amendment provides an important new protection for employee-like workers against being unfairly removed from a digital labour platform. It will ensure that legitimate management action, including temporary suspension, can occur where there is a reasonable belief of fraud or health and safety concerns. In certain circumstances a platform may suspend a worker's access to a platform for a period of up to seven business days.

On delegates rights, the small business definition had the term 'small business' rather than 'small business employer', and that's being fixed. On the protected action ballot conferences, this amendment clarifies that only the bargaining representative or representatives who apply for a protected action ballot order must attend the conciliation conference in order for subsequent employee claim action to be protected. It also clarifies that employer bargaining representatives must attend the conference for any employer response action to be protected.

There's an amendment to the Coal Long Service Leave Corporation board of directors provision, simply to update the withdrawal of the mining and energy division from the Construction Forestry Maritime Mining And Energy Union. On the Financial Framework (Supplementary Powers) Act silica awareness-raising activities, this is a technical amendment to clarify the relationship between the new functions that will be conferred on ASEA and the Commonwealth's powers under the Financial Framework (Supplementary Powers) Act 1997 in relation to silica awareness-raising activities.

On the Family and Injured Workers Advisory Committee, this amendment to the Work Health and Safety Act establishes a new Family and Injured Workers Advisory Committee, which will provide advice to me, to future ministers and to the Commonwealth work health and safety regulators on the support needs of those affected by serious workplace incidents and to help inform the development of relevant policies and strategies. The establishment of this committee follows ongoing discussions I have had with families affected by a workplace fatality, including courageous advocates whom members will have met with, like Kay Catanzariti, Dr Lana Cormie and Michael Garrels. Thank you for your tireless commitment to reform. We are committed to taking action to prevent tragic accidents from occurring but, if they do, to ensuring that we have the right supports in place.

I thank all members for their engagement on the bill. In short, other than the committee, this is largely a set of technical amendments to the bill, including the three areas in consultation with the gig platforms, in consultation with the hotels association and in consultation with AREEA to make sure that the policy intent of the original bill has been met.

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

I say to anybody who is listening to this parliamentary debate that you should be put on notice that whenever the minister at the table, the member for Watson, uses his reasonable tone, something very, very dodgy is happening. And I'll tell you what is happening that is very, very dodgy. At approximately midday today 36 pages of amendments were introduced by this government. They had not been made available to the opposition or to the crossbench prior to that time—36 pages of detailed amendments, yet we are conducting this debate under a set of changes to the standing orders moved by this minister and rammed through this House saying that the total time available for discussion on these 36 pages of detailed amendments is 20 minutes. Twenty minutes of debate is all the government sees fit to make available for any attempt to consider these very detailed matters.

We know that just about nothing this minister says on these matters can be trusted. When you look at the dodginess of the process he is using and the government is using, it is clear that he is showing contempt for this House and contempt for the Australian people.

For example, we were told by the minister in the public domain on a number of occasions over the past few months that service contractors were already clearly excluded under the wording of his draft bill. Yet we now know, from the fact that the minister has, he tells us, moved amendments that deal with service contractors, that that claim was completely incorrect. I want to go specifically to the question of casuals, because one of the most problematic aspects of this bill is that there is an extremely complex definition of casual employment. There are 15 steps that you need to work through to determine whether an employee is a casual or not a casual.

I have some questions for the minister, and I'd like to ask him the following: can the minister explain to the House the 15 steps that need to be considered in determining whether an employee is casual or not? Can a casual employee work a wholly regular pattern of hours? Can the minister confirm that, under the provisions proposed, even if a person wants to be a casual employee, has sought out to be a casual employee and has agreed in writing that he or she is a casual employee, on the terms of the definition, the Fair Work Commission can determine that the person is not in fact a casual employee? Can the minister explain the definition of 'deliberate misrepresentation' and when it applies so that somebody who is understood by himself or herself and by that person's employer to be a casual could retrospectively be determined not to be a casual?

Another question I have for the minister is about the tension between the legislative note that he's holding out as the solution to this problem and proposed section 15A(3)(c), which states that a pattern of work is regular for the purposes of subparagraph (2)(c)(iv) even if it is not absolutely uniform and includes some fluctuation or variation over time. I ask the question of the minister: how will the Fair work Commission determine the status of an employee given the contradiction between proposed section 15A(3)(c) and the wording of his legislative note? I further ask the minister how he seriously puts forward the proposition that this definition adds clarity when we know that it's a three-page, 15-part definition and that during Senate estimates just last month we had the opportunity to see some 20 to 30 minutes taken by three industrial relations experts from the government's own department to explain this definition. I further ask the minister whether he truly believes that a business owner who is dealing with a continually rising cost of business inputs, with ever-increasing regulation and with more hoops to jump through, can be expected to read through this three-page definition of a casual employee and work out what he or she needs to do to be compliant in just 15 minutes. Can the minister confirm that, in fact, even if a contract says that somebody is a casual, that is not definitive of that person's status? I have plenty more questions to ask, but because I've arrived at my time limit I'll defer to colleagues.

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

I require we have an extra 10 minutes for this debate.

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

I want to start tonight by acknowledging that the minister and his team have worked very hard to try and ensure that anyone who wished to be engaged in this process for review around the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 was given time. That is true. It's a fair thing to say, and I want to acknowledge that and thank you for that. With that said, it's been incredibly difficult for me as a member of the crossbench to have received these amendments at 12.30 or one o'clock—whenever they came in—and now, just five hours later, to feel that I am across their implications. I have a number of questions that I'm hoping the minister can answer to help me understand.

I can see that there are clear efforts here to meet some of the feedback that you've received, particularly from large business groups, and I thank you for doing that. There is no doubt that we need to do everything we can to continue to encourage businesses to employ Australians, and we need to ensure that Australians who wish to work are able to work under the conditions that they seek to have.

In the explanatory memorandum, point 6 talks about the Fair Work Commission being able to join additional employers to an application for a regulated labour hire arrangement order where it is satisfied that more than one employer is supplying or will supply employees through a regulated host. Can the minister help me understand whether this means that the Fair Work Commission will actually have the powers to reach beyond a case to bring other companies into a case that it may be looking at? Similarly, I would also like to understand, when you talk about the provisions—this is point 15 of the explanatory memorandum. 'The deactivation from a digital labour platform would not be unfair'—am I right in understanding that to mean that the government is trying to provide advice to businesses on when they can deactivate someone rather than leaving that decision up to the businesses themselves based on their own business operating principles?

Finally, I am interested in the provisions under explanatory note No. 21, which talks about the appointment to the board of directors for the coal and mining industry. Am I correct in reading that to mean that, in fact, that means there will be another seat now on that board and that that seat will be held for the mining and energy division particularly as opposed to previously there being one seat that was meant to cover construction, forestry, maritime, mining and energy unions? There will now be two seats for those unions?

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

I echo the sentiments of the member for North Sydney. She and I have been poring over this intermittently for the last several hours, trying to work through a very heavy stack of amendments. Again, I appreciate the engagement with the minister and his office. My question is more generalised. I think it's not only for members of this chamber to understand; I think members of the public would be curious to know what the rush is. In many ways the Senate has been in mutiny on this, sending back a pretty unusual mechanism to try to delay this through a conference that I believe hasn't been used since the 1930s, which is a fairly radical step to prevent this legislation from passing this week. Given the Senate committee process and our understanding that, as we have discussed extensively, the bill that comes back in the end in February will be vastly different to anything that we vote on today, I'm still not really clear why we have to rush this through before Christmas.

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

First of all, there are a few different issues there. I will start with the questions about the definition of a 'casual'. Effectively, when you talk about what all these other elements of a 'casual' are, a lot of what's being legislated goes back to what the common law had been for a very long time until quite recently. Effectively, we're in a legislative sense going back to an objective definition of a 'casual'. But, on the question of whether, if someone doesn't want to convert, they have to convert, the answer is that, if you want to stay a casual, you can stay a casual. It is as simple as that. I know there's an attempt to make that complex; it's actually quite straightforward.

I will go through the issues of the member for North Sydney first. On coal long service leave, there is already a position there, and it's simply that the position under the statute is for the mining division of the CFMEU. That's what's already there. The mining division is about to leave the CFMEU and they voted for the de-amalgamation. Effectively, we weren't as advanced with that when I introduced the bill. We're now there, so we're taking the chance to move the amendment so they don't, in fact, lose their position on that board.

But it is not an additional position; it is simply a renaming because the organisation itself has renamed. So that's that one.

With respect to multiple arrangements, can I explain first of all the problem we're wanting to solve. The problem we're wanting to solve is if you have a company that uses a number of different labour hire firms for the purpose that this bill deals with. It only realistically happens with a company with high enterprise agreement rates where they are using labour hire for work that their direct employees otherwise do and they are wanting to go down to the award or a lower rate. They are using it to undercut the rate they've otherwise agreed to. One of the problems that had been pointed out in consultation was that, if someone makes an application to the labour hire firm they work for to have that fixed so that what people are being paid goes up to the enterprise agreement rates, if the company is using multiple labour hire firms then effectively you haven't solved the problem. They will just switch firms and go to other firms. So this is to give the commission the capacity that, if they are working with a number of labour hire firms, effectively it can make an order that applies to whichever labour hire firms might come in for those particular tasks. It gives the commission the authority to be able to do that.

The concept of deactivation is largely in the terms which the member for North Sydney said. There are extra words that were put in there to effectively give advice and guardrails and to make clear that there are circumstances where deactivation would be completely reasonable just as there are circumstances when dismissal in a employment relationship is completely reasonable.

I'll finally go to the issue of, 'What's the rush?' and the Senate committee process. There has been a long process in the Senate of delaying the bill. They are entitled to have their processes and do it the way they have. But the impact is that a couple of weeks ago, during a Senate-only week, they switched 1 February from being the latest date the Senate committee could report to it being the earliest date they could report. These dates have continued to be pushed out over time. My concern is that, if we don't give them the completed bill from the House of Representatives for their final meeting, which is in January, what will happen is we will still be moving amendments next year, we'll send it to them then and they'll say, 'Now we need another inquiry because you moved amendments to the bill.' I'm not saying every senator will argue that, but I certainly know some will. Some of the business organisations have already started saying, 'If there is an amendment, we now need a further delay.'

On the timelines in the bill where people say, 'That provision doesn't start for some time,' some, or most, of those delays are in fact to give the commission time to get processes in place so that they can be made simple and they can get all the information out to employers. On the labour hire loophole, for example, even though it won't start for some time into next year, the concept is that the cases and the work will be able to be done straightaway and there will be a whole lot of work by the commission leading up to these dates. Some people have looked at it sceptically and said, 'What is the rush?' in the sense of saying, 'Why are you rushing the bill when the starting dates for those provisions are late?' The starting provisions for some sections of the bill are late, but the work would begin immediately. The work of the Fair Work Ombudsman would begin immediately. The work of the Fair Work Commission would begin immediately.

We had significant information come back to us after last year's bill about the number of provisions that commenced on the same day. One of the things that the Fair Work Commission fed back to the government and directly to me was that, for their processes, it is much more helpful if we stagger the start dates. Then they are in a better position, for both workers' representatives and business organisations, to be able to get processes in place and make sure that there is very clear communication.

I don't believe we can responsibly leave the House of Reps amendments to any later than this week. We deal with them this week. I would love the Senate to be dealing with them next week, in the Senate-only week, but I think chances of that are remote, at best. They will make their decisions as to when they'll deal with the bill, but I do know this: if we don't give them a completed bill for their final hearing in January—and our only chance to do that is today and tomorrow—then it will be used as a new excuse for a further delay, and a further delay starts to hit a whole lot of provisions for when they're able to start. So that's the reason.

I do know that some amendments to be dealt with by the crossbench could have been affected by amendments that I moved. To that end, this bill is listed for today and tomorrow. Some people who were in that circumstance—I know the member for Fowler is not, and the member for Melbourne, the Leader of the Green Party, is not—wanted that delay. That's why, once we've dealt with my amendments, the amendments from the member for Fowler and the amendments from the Australian Greens, I'll adjourn the debate so that tomorrow the crossbench have that time. I hear there is always an argument of 'Can we have more time?' But, within the limits and constraints that we have, I really want these benefits to be reaching workplaces. I don't want to give the Senate a reason for a further delay beyond the delays they've already put in place.

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

I want to turn to a couple of other aspects of the 30-plus pages of amendments—36 pages of amendments, with nine separate sets of amendments which the government made available around midday today and then brought on this debate less than six hours later. Of course, it's under a guillotine which involves a cap of 20 minutes for the consideration-in-detail phase, which is, frankly, making a mockery of the processes of this parliament and showing this minister's, and this government's, contempt for the parliament and contempt for the Australian people.

One of the areas where there has been very significant concern across the economy is the impact of the minister's bill in relation to service contractors because, across the economy, there are many large and small companies that provide services under contract to other businesses. They might be a company like Downer EDI, to take one example, but there are many. I know, from my own time in the telecommunications sector, there are many service contractors who provide particular services to telcos such as Telstra, Optus or TPG. They might be services in relation to the rollout of a network.

The problem with the clumsy and expansive drafting that the government has used is that service contractors are facing the very real risk that they will get caught by these provisions, such that, while they're not, in fact, labour hire contractors at all, they could find themselves in the position that their employees are suddenly employed automatically under the same terms as those used by the company to which they are providing a contract. Minister, you've told media outlets that 'service contractors were completely exempted'. I want to ask this specific question: even with the amendments that you have brought in today, would those firms still be required to prove that they are not labour hire firms? Is there a process that is required? I ask the minister to enlighten Australians on that, which is one of many areas which are deeply murky.

I also want to come to the question of the gig economy because, again, we heard smooth assurances in this minister's best honeyed tones just a few minutes ago which should put any rational person on notice that he's doing something deeply dodgy. In the immortal words of President Reagan—

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

It being 6.24 pm, the time allotted for this debate has expired.

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

The question before the House is that the government amendments be agreed to.

Adam Bandt (Melbourne, Australian Greens) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (8), as circulated in my name, together:

That all words after "That" be omitted with a view to substituting the following words:

"the House:

(1) notes the billions of dollars in climate damage that the gas industry has already inflicted through turbocharged bushfires, floods and a 23 per cent reduction in agricultural profits, representing $29,200 in losses per Australian farm; and

(2) acknowledges that the Australian Taxation Office has labelled the gas industry as 'systemic non-payers of tax'; and

(3) notes that the Parliamentary Budget Office has costed the potential revenue from repairing the Petroleum Resource Rent Tax at $94.5 billion over the decade; and

(4) resolves that gas companies earning super profits from war should no longer avoid payment of super profits taxes; and

(5) calls on the Government to amend the bill to ensure a minimum doubling of revenue from the Government's proposed changes to the gas super profits tax".

These amendments seek to clarify some matters in the bill and also make some changes that will mean that workers in this country get greater protection. At a time of a significant cost-of-living crisis and also where wages and conditions need to be protected, these amendments will deliver some real benefits to workers, which is something that the Greens have been keen to secure.

There are three sets of amendments here. The first set deals with the question of casual employment. In the bill introduced by the government, there are factors around casual employment where the bill talks about seasons. On an initial reading of the bill—and some concerns have been raised about this, including during the inquiry process—there was a concern that 'season' could have been taken to include people who work in fixed defined periods in universities or schools—so teachers or lecturers.

There was a concern that a school term or a university semester could count as a 'season'. These amendments clarify that by including a note to make it clear that teachers don't count as seasonal workers, just because they're working on a semester basis. We know that this is a significant problem because many people in universities and schools have been called casuals or put on short-term arrangements, and, come the end of the semester, they find themselves out of a job and out of an income. Of course, we need teachers and lecturers from year to year, and, simply because there's an end to a semester, you can't somehow call that seasonal work. 'Seasonal work' is meant to deal with other matters that the government has outlined in the bill, but it's not lecturers and it's not teachers. These amendments will clarify that.

The second set of amendments deliver a really important protection to workers, and that is to include in the wage theft provisions the nonpayment of superannuation. We know that this is a massive problem for many workers. Their superannuation just doesn't get paid. Most employers do the right thing, but, in those instances where they don't, it's that the employer doesn't see it as a serious enough obligation to do it. In the bill, the government is making wage theft an offence, and, although superannuation might not technically be paid to employees—it's paid to a third person on the employee's behalf—nonetheless it's for the benefit of the employee. Workers, particularly young workers, who often find themselves without superannuation, really shouldn't have to go to court to get that remedied. It should be up to the employer to the right thing from the beginning. So, in the same way that the government has introduced a new offence with respect to wage theft, the amendment that we're moving will expand that to include superannuation.

The last set of amendments deal with an issue that I think was probably an unforeseen consequence of a previous government piece of legislation. The government previously did a very good thing, which was to say that employers can't use the threat of terminating agreements during negotiations as a way of getting leverage, which is something that many employers were doing. One of the things the government did was introduce provisions to enable protracted disputes to be arbitrated. What has happened since then is that some employers, especially in the university sector, have picked this up and are advising some of their members, 'We can wait out negotiating periods and just go to the commission to get the claims arbitrated and potentially get the same result via a backdoor way.' I don't think that was the intention of the first legislation, and so this just closes the loophole. It means that, if you end up in arbitration, you can't go backwards. It doesn't provide a way of going forward, but it does mean that people can't go backwards, which maintains the spirit of the underlying principle of the act, which is that agreements remain in place until a new one is negotiated. (Time expired)

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

These are good amendments, and the government's pleased to support them. I want to thank the member for Melbourne for his engagement and the engagement by his party. There have been a number of meetings with, in particular, the member for Melbourne and with Senator Pocock. I'm very grateful for that, and these amendments all improve the bill.

Some would argue that wage theft is already covered under tax law with respect to superannuation, but the challenge there is that it's only when it's not being paid, you get an order 'you need to pay it' and you breach that order; there it's a criminal offence. However, with this amendment, when a prosecution is happening for wage theft, it will allow for it to deal with superannuation theft at the exact same time. We know that, if there's an underpayment that's likely to happen first, it's very likely that in fact it is superannuation. So we're very pleased to support that part of the amendment.

Similarly, the change with respect to casual employment makes sure that a 'specified season' has the meaning that it should have, and I'm grateful for that being brought forward.

On the final amendment, about the consideration of a prior enterprise agreement with respect to a subsequent workplace determination, I want to reinforce to the House that what this effectively does is bring back a concept that was there before we introduced the arbitration principles. It used to be that the old agreement would just remain in place.

This allows that, as a result of the secure jobs, better pay laws, we don't end up in a worse situation than that.

I am aware of reports of certain employer consultants—one of whom, who has had a long history with the other side of politics—who have been providing advice to businesses on how they might be able to game the laws we put in last year to actually find ways of workers going backwards during the course of arbitration. We introduced the legislation and supported the legislation last year, secure jobs, better pay, because we wanted to get wages moving, not because we wanted to find an opportunity for certain employers—and this is certainly not most employers—to game the system and find ways to get conditions to go backwards. These amendments fix that, and we're happy to support them.

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

The question is that the amendments be agreed to.

Question agreed to.

Debate adjourned.