Fair Work Legislation Amendment (Closing Loopholes) Bill 2023

Allegra Spender

I move amendments (4) to (34) and (36) to (41), as circulated in my name, together:

(4) Schedule 1, item 5, page 8 (line 10), at the end of section 66AAA, add:

; and (d) ensures that there cannot be changes to, or conversion of, a person's casual employment status against the person's wishes.

(5) Schedule 1, item 220, page 98 (after line 28), at the end of subsection 327A(3), add:

Note 3: Paragraph (b) of this subsection means that to commit the offence the employee needs to intend for the conduct to result in a failure to pay the required amount in full on or before the day it is due.

(6) Schedule 1, item 231, page 103 (lines 3 to 8), omit subsection 717A(1), substitute:

(1) While a cooperation agreement is in force between the Fair Work Ombudsman and a person:

(a) the person is not liable to be prosecuted in a court for a possible offence against subsection 327A(1) involving conduct engaged in by the person that is covered by the agreement; and

(b) the Fair Work Ombudsman must not refer the conduct to the Director of Public Prosecutions or the Australian Federal Police for action in relation to a possible offence.

Note: See subsection 717B(1) for the definition of cooperation agreement.

(7) Schedule 1, Part 15, page 113 (lines 1 to 31), omit the Part.

(8) Schedule 1, item 248, page 123 (line 26), before "A person", insert "(1)".

(9) Schedule 1, item 248, page 123 (after line 29), at the end of section 15G, add:

Note: The person is not an employee (see paragraph 15P(1)(d) or 15Q(1)(c)).

(2) Nothing done by a regulated business under Chapter 3A in relation to the person makes the person an employee.

(10) Schedule 1, item 248, page 126 (line 3), omit "(1)".

(11) Schedule 1, item 248, page 126 (lines 17 to 28), omit subsections 15L(2) to (4).

(12) Schedule 1, item 248, page 127 (lines 1 to 16), omit section 15N, substitute:

15N Meaning of digital platform work

Digital platform work means work performed by an independent contractor, where:

(a) the work is performed under a services contract through or by means of a digital labour platform, or the services contract under which the work is performed was arranged or facilitated through or by means of a digital labour platform; and

(b) payment is made for that work.

(13) Schedule 1, item 248, page 128 (line 10), omit "one or more of the following", substitute "all of the following".

(14) Schedule 1, item 248, page 128 (line 14), omit "at or".

(15) Schedule 1, item 248, page 128 (line 17), omit "work;", substitute "work.".

(16) Schedule 1, item 248, page 128 (lines 18 and 19), omit subparagraph 15P(1)(e)(iv).

(17) Schedule 1, item 248, page 128 (lines 23 to 25), omit subsection 15P(3).

(18) Schedule 1, item 248, page 128 (after line 30), at the end of section 15P, add:

Persons who are not employee-like workers

(5) Despite subsection (1), a person is not an employee-like worker if the person:

(a) performs digital platform work under a contract; and

(b) can determine what that work involves; and

(c) can set their own rates of pay for that work; and

(d) can determine their own conditions for that work.

(19) Schedule 1, item 249, page 148 (line 4), at the end of paragraph 536JX(c), add:

(v) the recipients of services;

(20) Schedule 1, item 249, page 153 (after line 23), at the end of section 536KG, add:

(3) In making a decision under subsection (1) relating to employee-like workers, the FWC must consider the public interest including the need to support:

(a) productivity; and

(b) the effective, timely and accessible provision and distribution of goods and services to the community; and

(c) innovation and investment in the development and availability of digital platform work in Australia.

(21) Schedule 1, item 249, page 155 (before line 31), before subsection 536KL(1), insert:

(1A) In addition to sections 536KH and 536KK, an employee-like worker minimum standards order may only include terms about any of the following matters:

(a) payment terms;

(b) deductions;

(c) working time;

(d) record-keeping;

(e) insurance;

(f) consultation.

(22) Schedule 1, item 249, page 155 (line 31), omit "A minimum standards order" substitute "A road transport minimum standards order".

(23) Schedule 1, item 249, page 156 (line 11), omit "minimum standards order" substitute "road transport minimum standards order".

(24) Schedule 1, item 249, page 156 (after line 27), after paragraph 536KM(1)(e), insert:

(ea) in the case of an employee-like worker minimum standards order—superannuation;

(25) Schedule 1, item 249, page 166 (line 6), before "A person", insert "(1)".

(26) Schedule 1, item 249, page 166 (line 21), omit "6 months", substitute "12 months".

(27) Schedule 1, item 249, page 166 (after line 21), at the end of section 536LD, add:

(2) For the purposes of paragraph (1)(c), regular basis means an average of at least 15 hours per week during the period.

(28) Schedule 1, item 249, page 167 (lines 16 to 22), omit paragraphs 536LG(b) and (c), substitute:

(b) the digital labour platform operator suspended or terminated the person's access to the digital labour platform.

(29) Schedule 1, item 249, page 167 (line 31), omit paragraph 536LH(1)(c), substitute:

(c) the health, safety and wellbeing of consumers of the digital labour platform.

(30) Schedule 1, item 249, page 168 (lines 8 and 9), omit "Without limiting the matters covered by the Digital Labour Platform Deactivation Code, the code must" substitute "The code must only".

(31) Schedule 1, item 249, page 168 (lines 11 and 12), omit paragraph 536LJ(2)(a).

(32) Schedule 1, item 249, page 168 (lines 16 and 17), omit paragraph 536LJ(2)(d).

(33) Schedule 1, item 249, page 168 (line 19), omit "deactivation;", substitute "deactivation.".

(34) Schedule 1, item 249, page 168 (lines 20 to 23), omit paragraphs 536LJ(2)(f) and (g).

(36) Schedule 1, item 249, page 187 (line 18), at the end of subsection 536MR(3), add:

; and (f) if the collective agreement relates to employee-like workers—specify any payments or benefits provided, or to be provided, to the organisation:

(i) by, or on behalf of, the regulated business; and

(ii) under or in relation to the collective agreement.

(37) Schedule 1, item 249, page 187 (line 24), omit "subsection (2)", substitute "subsections (2) to (3A)".

(38) Schedule 1, item 249, page 188 (after line 4), after subsection 536MS(3), insert:

(3A) If the collective agreement relates to employee-like workers, the FWC must be satisfied that the agreement is in the public interest after having regard to the need to support:

(a) productivity; and

(b) the effective, timely and accessible provision and distribution of goods and services to the community; and

(c) innovation and investment in the development and availability of digital platform work in Australia.

(39) Schedule 1, item 308, page 224 (line 1) to page 228 (line 24), omit Part 16.

(40) Schedule 1, item 308, page 229 (line 14), omit "536LD(c)", substitute "536LD(1)(c)".

(41) Page 230 (after line 3), after Schedule 1, insert:

Schedule 1A — Other amendments of the Fair Work Act 2009

Fair Work Act 2009

1 At the end of section 3

Add:

; and (h) facilitating growth in real wages through productivity and competition.

2 Subsection 23(1)

Omit "15 employees", substitute "100 (full-time equivalent) employees".

3 At the end of Division 2 of Part 5-1

Add:

Subdivision D — Review of the FWC

584C Review of the FWC by the Productivity Commission

(1) The Productivity Commission must review:

(a) the operations of the FWC; and

(b) the effectiveness of Australia's system of workplace relations and industrial regulation.

(2) The Productivity Commission must complete the review and give the Minister a written report of the review by 31 October 2024.

(3) The Minister must cause a copy of the report to be tabled in each House of the Parliament before the end of 2024.

(4) The functions of the Productivity Commission are taken to include conducting and reporting on the review.

I have sought a range of amendments to the bill. I'd like to explain the rationale for these amendments, starting from where we agree and where we disagree in relation to these amendments. Where do we agree? In broad terms, we want to see real wages rise for Australian workers. That is something that I fundamentally agree with, as is that Australian workers are appropriately protected. I also want to see businesses thrive and grow in productivity, because, as the Productivity Commission has demonstrated, 80 per cent of real wage growth is associated with productivity growth. If we do not get productivity growth, we will not get real wage growth that is sustainable in the long term. For me, that is really the critical lens through which I look at this legislation.

This comes back to the question of whether the bill gets the balance right to ensure we will drive productivity over the long term to ensure that real wages go up while ensuring the bad actors in the economy—and there are bad actors—do not behave in a way that is detrimental to workers and to the broader economy. I think this is the heart of where the government and I disagree. The government has presented a number of legitimate concerns they have with the current industrial relations framework and with a number of particular companies they feel are breaching those concerns. They have also identified that the gig economy is a new part of the economy and it should be regulated appropriately for the safety and care of workers, with which in principle I 100 per cent agree. However, it is the range and scope of the government's intervention in this space that is my concern. It is the range and scope of the legislation where I just feel that the government fundamentally has not got the balance right.

My piece has been from the start that I think it's about being narrow in our understanding of the problem and narrow in our understanding of the solution to be applied so that good businesses and good workers who are enjoying the current arrangements and the flexibility that they provide are not negatively impacted by these changes.

Let me take you to a few of the amendments that I have moved. Firstly, I'm moving amendments that would make real wage growth an object of the Fair Work Act, because, frankly, I think that, if we're not growing real wages, we are not actually looking after our workers, because that has the most material impact on their living standards. It also includes the Productivity Commission having a review of the Fair Work Commission. I seek that because I would like to make sure that our fair work provisions and the Fair Work Commission actually deliver productivity growth, because, again, without productivity growth, we don't have real wage growth. Without real wage growth, people in this country will go backwards. Otherwise, it also increases the threshold of businesses from 15 to 100, about which I've already spoken.

On the subject of casuals, there are a number of amendments that another colleague is going to move and which I wholeheartedly support. I'm very concerned about what the government is doing in relation to casuals. People who rely on casual work right now because of the flexibility and also the additional money it brings into the household are not going to be able to do that if businesses aren't doing the right thing, and I think that is fundamentally problematic. I have moved an amendment to try to make sure that those who are casual workers cannot be converted into a permanent worker against their wishes.

I have also moved a number of amendments in relation to the gig economy. This comes down to balance. As I said, I accept that we need to have minimum standards in the gig economy. But it's the range and scope and uncertainty—the breadth of those arrangements is my concern. My concern on this is that, as someone who has run businesses, if I need to keep coming back to the Fair Work Commission to understand what I need to do, if, if the Fair Work Commission has an unlimited range of things it can make arrangements on in relation to this, that is problematic for a business trying to have certainty—particularly when some of these provisions will particularly affect healthcare provision in some of our rural and remote communities who haven't historically had that support and now have had it through some of those platform workers. I'm very concerned that that will be impacted.

Long debate text truncated.