Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Ian Goodenough

The question is that the bill be agreed to.

Dai Le

I move amendments (1) to (6) standing in my name:

(1) Schedule 1, item 248, page 126 (lines 3 to 5), omit "A digital labour platform means an online enabled application, website or system operated to arrange, allocate or facilitate the provision of labour services", substitute "A digital labour platform means an online enabled application, website or system to the extent that it is operated to arrange, allocate or facilitate the provision of government funded labour services".

(2) Schedule 1, item 248, page 126 (line 18), after "system", insert ", to the extent that it relates to the provision of government funded labour services, ".

(3) Schedule 1, item 248, page 126 (after line 28), at the end of section 15L, add:

(5) In this section:

government funded labour services means labour services funded directly or indirectly by the Commonwealth or by a State or Territory (whether under a law, agreement or in some other way).

(4) Schedule 1, item 248, page 126 (after line 33), at the end of section 15M, add:

Note: A platform is only a digital labour platform to the extent that it is operated to arrange, allocate or facilitate the provision of government funded labour services (see subsections 15L(1) and (2)).

(5) Schedule 1, item 248, page 127 (lines 10 and 11), omit paragraph 15N(1)(b), substitute:

(b) work that:

(i) is funded directly or indirectly by the Commonwealth or by a State or Territory (whether under a law, agreement or in some other way); and

(ii) is prescribed by the regulations for the purposes of this subsection.

(6) Schedule 1, item 248, page 127 (after line 11), at the end of subsection 15N(1), add:

Note: For subparagraph (a)(i), a platform is only a digital labour platform to the extent that it is operated to arrange, allocate or facilitate the provision of government funded labour services (see subsections 15L(1) and (2)).

I have already said that I think this bill is taking a radical approach to reforming the Australian workforce. Businesses are concerned, and rightly so, that something as important as changes to industrial relations is being rushed through. We are all experiencing higher costs of living, including small businesses, and there are over 28,000 of them in my electorate of Fowler.

A small business in my electorate of Fowler told me recently that they are doing it tough, as they're squeezed on both fronts as a consumer and as a supplier of goods and services. They're a pastry shop, and they have had the supply cost of icing sugar increase by 43 per cent and jam filling by 41 per cent in the past two years to September 2023. In the same period, they were only to increase their prices by 11 per cent to partially recover these increases. They're also seeing an increase in insurance premiums, which had the third-highest inflation increased 8.6 per cent. Many residents are taking risks as they cannot afford insurance, and businesses are not taking out insurance either. The instant asset write-off for small businesses was due to drop from 150K to 1K but was scaffolded with a temporary decrease to 20K for this financial year.

These are some of the challenges my local businesses are experiencing, and now this bill will add layers of complications to running a business. I understand that the minister has been in small business. But running businesses today, with the increased costs of wages, ingredients, insurance, rent and the delivery of goods, just to name a few, is far different to running a small business decades ago or even pre COVID.

So how is the government supporting small businesses to thrive and keep the economy running? Over 100 amendments to this bill have been introduced, which demonstrates that much work still needs to be done in getting this legislation right. The Australian workforce is complex and vast, and I strongly believe that the government should deal with each sector separately, giving it the time and attention that the legislation and, more importantly, Australian workers deserve.

My amendments are around the gig economy. It's definitely important to close the loopholes, but it must be done in a balanced and consultative way. People value the convenience of digital platforms, and contractors value the flexibility of the workplace.

So, in my amendment, I ask to look at focusing just on the digital platforms that actually receive government or taxpayer funding. As the minister constantly mentioned, it's about the Mable platform, because the danger for us is that this bill is going to impact all of the other digital platform work. It's a policy that may be perceived as an attack on the commercial arrangements of business owners and the self-employed. The essence of the gig economy is that people can choose to be their own boss and can dictate their own schedule without the intervention of others. Contractors post their services on platforms like Airtasker and Oneflare, and it is free for all to click to engage if they so wish. This is their prerogative.

However, I recognise that the regulation of specific areas of digital platform work may prove beneficial. Mable is one of those sectors. So I ask the government to really consider this with the closing loopholes bill. Because it was rushed through yesterday, obviously many of us in the Independent crossbench haven't had the chance to really study it all, and I don't know if your 100 or so amendments have taken into consideration the digital and gig economy. The focus should be targeted only at the platform that receives all of the taxpayer funding and money.

Tony Burke

I want to thank the member for Fowler both for the points that she has raised and for the engagement that has happened with her on this bill and, indeed, on the secure jobs, better pay bill a year ago. On that occasion, I remember, we were able to accept and support the amendment that was put forward by the member for Fowler. On this occasion, we're not, and I'll explain why.

Before I do, I will just say something on the concept, which has been mentioned a few times, of whether this bill is being rushed through. In this term, I think there has been only one bill that has gone through the House more slowly than this one. As to its being rushed through, we have made sure that there was a maximum time for people to be able to debate. We have waited until this week before we got to amendments. Indeed, for the first time I can remember happening, after government amendments were moved we have then waited a day before resuming to try to make sure that there was a better opportunity for people to get through those before they dealt with their own amendments.

As to the different platforms that have been raised, the member for Fowler and I share a view with respect to Mable: there is a direct role there for government funding, and the government funding should not effectively be paid as though it makes its way to the worker and then not make its way to the worker, without there being some minimum standards that would apply to this form of engagement. But the government does also want this to reach other digital platforms—for example, the food delivery and rideshare platforms. If I go back to when we first designed the employee-like policy in opposition, it was very much about platforms like Uber, and not just those platforms but some competitors that were coming in under, such as HungryPanda, because what you have here is forms of work that had always been subject to minimum standards. In the view of the government—and I respect it's a contestable view—people on gig platforms don't technically satisfy the definition of 'employee' but also don't, in fact, satisfy what most people would regard as the criteria for someone running their own business and having control. That's why we wanted to make sure that we didn't interfere with the form of engagement. I use the platforms as well. I expect everybody here does. People want the technology. But the technology should not come at the price of there being no minimum standards for the workers at all.

The amendments that I moved yesterday still kept this applying to those digital platforms that the member for Fowler's amendment would seek to remove. But it might give some comfort to the member for Fowler to know that the amendments yesterday did make some changes that arose directly out of negotiations with Uber, DoorDash and Menulog, to make sure that there was nothing we were doing that could inadvertently change people into employees. The minimum standards won't be all the minimum standards you get in an employment relationship, but to have a situation where there are no minimum standards at all allows a race to the bottom for people who effectively have no power in negotiation who are on the digital platforms.

The minimum standards that are available to an employee include things such as rostering and overtime rates. None of those become available here, but to have some minimum standards and a process in terms of a right to challenge if you're just deactivated overnight and your job is suddenly gone without reasons is something that gig workers have asked for and the platforms are willing to work with, and I want to be able to do that. This amendment would prevent that.

Secondly, the concept of having some minimum hourly rates is something that the gig platforms believe they can work with. The only real study of this was by a Victorian inquiry, which found roughly a $2 an hour difference between what people would get as an employee and what they were getting on these platforms. The difference is modest, but it also stops some other competitors coming through and completely undercutting, effectively shifting us to being a country where you have to rely on tips to make ends meet. I respect the arguments that have been put forward by the member for Fowler, but for the reasons I have given we won't be supporting the amendments.

Question negatived.

Long debate text truncated.