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representatives vote 2023-11-28#5

Edited by mackay staff

on 2024-05-31 08:26:13

Title

  • Bills — Fair Work Legislation Amendment (Closing Loopholes) Bill 2023; Consideration in Detail
  • Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 - Consideration in Detail - Government amendments

Description

representatives vote 2023-11-28#5

Edited by mackay staff

on 2024-05-31 08:24:35

Title

Description

  • <p class="speaker">Milton Dick</p>
  • <p>The question is that the amendments moved by the Leader of the House be agreed to.</p>
  • <p class="speaker">Tony Burke</p>
  • <p>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.</p>
  • <p>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&#8212;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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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&#8212;and I might just seek the call again&#8212;</p>
  • <p class="speaker">Milton Dick</p>
  • <p>The question is that the amendments be agreed to, and I give the call to the Leader of the House</p>
  • <p class="speaker">Tony Burke</p>
  • <p>by requiring the Fair Work Commission to take into account that workers may work on more than one platform at a time&#8212;multi-apping&#8212;and consider the impacts standards would have on users of platform services and on business costs.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p class="speaker">Paul Fletcher</p>
  • <p>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&#8212;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.</p>
  • <p>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.</p>
  • <p>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.</p>
  • <p>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?</p>
  • <p>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.</p>
  • <p class="speaker">Tony Burke</p>
  • <p>I require we have an extra 10 minutes for this debate.</p>
  • <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
  • The majority voted in favour of [government amendments](https://www.openaustralia.org.au/debates/?id=2023-11-28.16.1), which were introduced as:
  • > *government amendments (1) to (3) on [sheet PC100](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_c40732a0-6174-4d8f-ba3e-a37b614ba96a%22;rec=0), (1) to (19) on [sheet TD101](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_38657e93-8cac-473d-a0a4-3f10c025628f%22;rec=0), (1) and (2) on [sheet TM103](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_bf646c5f-135f-4335-9f52-bed4dfd04460%22;rec=0), (1) to (35) on [sheet RL102](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_de9778a1-a217-47ff-9532-12c2b1a31921%22;rec=0), (1) and (2) on [sheet ZE250](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_e48617e8-f362-43cf-9096-f195f023aefe%22;rec=0), (1) and (2) on [sheet ZE251](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_f19016c3-a736-44ff-a95c-da160dd9b1fd%22;rec=0), (1) to (17) on [sheet ZE255](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_ed8f6d8e-a25d-4442-aff1-9e057470edd7%22;rec=0), (1) on [sheet ZB263](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_a0ee6317-3198-405e-bedb-17bf181e626b%22;rec=0) and (1) on [sheet PA102](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Famend%2Fr7072_amend_6d8d0a3d-07f2-4de0-9c25-1ae12451f0fd%22;rec=0)*.
  • Because this division passed, these amendments will now be incorporated into the bill.
  • ### What do the amendments do?
  • These were introduced by Watson MP Tony Burke (Labor), along with a [supplementary explanatory memorandum](https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/display.w3p;query=Id%3A%22legislation%2Fems%2Fr7072_ems_cacd81e1-0506-4fc9-b9b1-c6a64c6b1d6f%22;rec=0), which explain what the amendments do.