SPEECH: Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

05 September 2023


Ms CLAYDON (Newcastle—Deputy Speaker) (16:49): As a member of the Albanese Labor government, I could not be more proud than to stand in this chamber tonight to speak on the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, which was introduced by my colleague the Leader of the House and Minister for Employment and Workplace Relations. This legislation is incredibly important. If you were interested in creating fair and just workplaces in Australia, then you would be supporting this bill. Australia needs an industrial relations system that is there to support all of its workers, not just some. This set of workplace reforms before us tonight is about four really key platforms. One is an explicit effort to criminalise wage theft. Seriously, if you think wage theft is okay, then you need to stand up and explain to the Australian people why you would vote against this legislation. If you think that cracking down on the labour hire loophole that's used to deliberately undercut pay and conditions in this nation is not okay, then you need to stand up and explain to the Australian people. If you think that properly defining 'casual work' so that casuals aren't being exploited is not a fine endeavour or something that you'd want to aspire to, again, you need to explain why the hell not. And, certainly, if you cannot see your way to making sure that gig workers are not being ripped off in this country, you have got a lot of explaining to do to the Australian people.

At the moment, certain Australian workers are missing out because of loopholes that allow pay and conditions to be undercut. For these workers, the minimum standards in awards and enterprise agreements are just words on a paper with little, if any, relevance to their daily lives. If we want workers to be paid properly, we need to close these loopholes. As the Australian Council of Trade Unions Secretary, Sally McManus, said:

This is a great day for Aussie workers.

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The laws that the government is bringing forward will give Australian workers greater job security, and it will stop employers stealing wages.

Seriously, I think it is indefensible for those opposite to oppose this legislation. If a worker steals from the till, it's a criminal offence. But, in many parts of Australia, if an employer steals from a worker's pay packet, it is not. I'm telling you, people in my electorate of Newcastle do not think that is a fair or just outcome. Many people in my electorate of Newcastle know just too well what this kind of wage theft looks like when it comes to unpaid superannuation. Too often I get calls from Novocastrians at their wits' end after being shortchanged thousands of dollars that are rightfully theirs. Recent figures show that one-third of Hunter-Newcastle workers were owed superannuation payments totalling $139 million. Industry Super Australia, which represents 12 Industry SuperFunds, says almost 74,000 Hunter workers missed out on employer contributions in the 2018-19 financial year alone. That is astonishing—74,000 workers in my region being explicitly ripped off.

The previous government did absolutely nothing—I've got to say—to stop wage theft, which rose to epidemic proportions under their watch. It took the Liberals and Nationals years to even acknowledge there was a problem. Eventually, they did bring in some half-hearted legislation, but, when it came to the Senate, they voted against their own legislation. They tore up their own draft laws because they couldn't get enough support for their plans to cut workers' pay and conditions in other ways. Instead, they sent a clear signal to wage thieves in this nation, saying: 'Just keep it up. We won't do anything.' Well, business owners who knowingly withhold wages should face the harshest of penalties.

We're determined to deliver on our promise to Australian workers and make wage theft a crime in this nation. Our proposal is to introduce a criminal offence for intentional underpayment of employees wages and certain entitlements and increased penalties for civil underpayment breaches, in line with the government's election commitments. This is no secret. This isn't something we've just dropped on the table. A number of us campaigned hard on a lot of the issues we are now seeking to seal with this closing loopholes legislation. An employer convicted of intentional wage theft could face up to 10 years imprisonment under this legislation. Significantly, courts will be able to impose up fines of up to three times the amount of the wage underpayment in both civil and criminal contexts, allowing penalties to be proportionate to the scale of misconduct, and that is important.

We're also ensuring our new laws do not water down any wage theft laws already put in place by the states, and that's important because Labor governments in both Victoria and Queensland criminalised wage theft. Frankly, they got sick of waiting for the former government to act. But Australia also needs a national wage theft system to end the rip-offs. This bill has built-in mechanisms to encourage businesses to come forward and self-disclose if they consider they have underpaid their workers, and employers who take reasonable steps to pay correct amounts or who make honest mistakes will not be criminally prosecuted. The Fair Work Ombudsman will be able to enter into cooperation agreements with employers who choose to come forward. As was requested by COSBOA, the council for small businesses, a new voluntary small business wage compliance code will provide assurance to small business employers that they can't be pursued criminally if they take appropriate steps to comply with the law. Furthermore, maximum civil penalties for wage underpayment, including reckless wage underpayment, will be increased, implementing recommendation 5 of the Migrant Workers' Taskforce. This is an important reform that I know will be welcomed by Newcastle workers, and we know migrant workers are particularly vulnerable and at risk of exploitation in the workplace.

There's also a very legitimate role in this nation for labour hire. Nobody on this side says otherwise. It's necessary for surge workforce issues, for specialist work or to provide temporary replacement workers. In Newcastle and the Hunter, labour hire ensures construction and manufacturing industries can continue their specialist work. Because of inherent insecurity, labour hire workers are usually paid at higher rates of pay, and those cases are completely unaffected by this legislation. If you've got a genuine reason to bring labour hire in and they are, as we have already said, workers who usually get paid at a higher rate because of that, you don't get caught up in this legislation. But when a business agrees on rates of pay in an enterprise agreement and then asks labour hire workers to do the same job for less, that is a labour hire loophole, and this bill will close it.

This bill amends the Fair Work Act 2019 to give powers to the Fair Work Commission to make orders that labour hire employees be paid at least the wages in a host enterprise agreement. That is fair and just, and this has been an outstanding issue in our workplaces for a long time. This delivers on the government's 'same job, same pay' election commitment. The Fair Work Commission must not make the order unless it is fair and reasonable to do so. Orders can apply only to pay rates, not to non-monetary conditions. To be very clear, this reform does not prevent employers paying their employees more in recognition of their skills, qualifications and experience, as has been purported through dreadful misinformation campaigns, and it doesn't apply to hosts who are small businesses comprising 15 or fewer employees, to independent contractors or to training arrangements. The Albanese Labor government is committed to providing support, certainty and fairness for Australian small businesses, and we're concerned about companies deliberately using the labour hire loophole in order to undercut the agreements that they've already made with their workers. That's what this legislation is trying to capture.

There's another feature—perhaps a little less spoken about—in this legislation that is also very important. That is making sure that employees who are subject to family and domestic violence are not being further discriminated against in the workforce. From 1 February, employees have had access to 10 days paid family and domestic violence leave, a work entitlement that saves lives and a terrific achievement of this Albanese Labor government. Today's legislation builds on that assurance that we provided to people, mostly women, in the workforce who had to face that dreadful choice of losing their jobs or putting up with violence in their relationships. Well, no more: we put in place that 10 days of paid family domestic violence leave. This legislation builds on this, ensuring that workers are not penalised in any way if they disclose that they have been subjected to family and domestic violence. Violence doesn't discriminate, and neither should the law. That's what this legislation makes very clear.

Family and domestic violence can affect all aspects of a person's life, including their wellbeing and their productivity at work. We know this. Those persons subjected to family and domestic violence should not be subjected to discrimination in the workplace because of their experience. An outcome of the 2022 Jobs and Skills Summit was that stronger protection should be provided against discrimination by including a new protected attribute of 'subjection to family and domestic violence' in the Fair Work Act 2009. This proposal will clarify and strengthen protections and assist victims-survivors of family and domestic violence to avail themselves of their workplace rights. This is a profoundly good thing for the Australian people. This will include requesting flexible working arrangements or accessing paid leave entitlements.

The amendments will prohibit employers taking adverse action, such as termination of employment, against employees, including prospective employees, because of family and domestic violence. They will prohibit any terms of enterprise agreements and modern awards that discriminate against a person on the basis of subjection to family and domestic violence. Finally, the amendments will require the Fair Work Commission to perform its functions and exercise its powers in a way that advances the goal of eliminating this type of discrimination. The proposal is consistent with and will assist in further fulfilling Australia's international treaty obligations, including those under the International Labour Organization's Violence and Harassment Convention, the ILO No. 190.

With the little time that I have left, I want to underline how important this legislation is for the protection of gig workers in Australia. I know many of my colleagues have spoken at length on this, but we have 13 gig workers who have died on Australian roads in the last few years, and that is utterly unacceptable. A New South Wales inquiry into the gig economy heard that riders made as little as $8 a trip, because they were being rushed to complete orders and they had their pay cut during the pandemic. We know there's a direct link between low rates of pay and people's safety at work. It leads to a situation where workers take risks so they can get more work done because they're struggling to make ends meet. This situation cannot continue. This legislation is about protecting workers, particularly those that don't meet the definition of an employee, as is the case for many gig workers, but are not genuine small businesses either. It's a sham to think that all these people are small businesses in their own right.

This is a great bill for casual workers, providing some help for 850,000 casual workers who have regular work arrangements and giving them greater access to leave entitlements and more financial security if desired. There are terrific measures in here to ensure the trucking industry is safe, sustainable and viable, reinstating a lot of work that the former government undid in this nation. As Sally McManus says, 'This is a great day for Aussie workers.'