Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021 Bills

I’m very happy to stand to address this bill, the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Bill 2021. I’d particularly like to address some of the comments that have been made about the coalition being on the side of big business and not on the side of workers. Certainly the coalition, as per the Liberal Party’s statement of beliefs, believe in small government, in letting people in the private sector get on with the job of creating wealth and creating jobs, which is what they do. The only sustainable way for a country to move ahead is for the private sector to be able to create jobs. But we recognise, as coalition speakers have mentioned in various contributions to this debate, that there does need to be a framework that ensures fair outcomes for workers, as well as opportunities and business conditions that encourage employers and investors to create businesses and create opportunities to employ. They need to be given the certainty around the conditions that they operate under so that they will employ, in particular as we come out of this COVID environment.

I do wish to come to the content of this bill in the context of a number of news reports highlighting that sometimes things don’t go well. If you look through news reports over the last year or so, you’ll see that a number of companies have been accused of underpaying staff by various amounts. Some names are very familiar: Grill’d. Some institutions are very trusted. The ABC, Qantas, Super Retail Group, Commonwealth Bank, Michael Hill, Sunglass Hut, Bunnings, Rockpool Dining Group, Woolworths, 7-Eleven, Subway—there’s a whole range of companies, as well as entities that are essentially part of government, that have been found guilty of underpaying workers. This legislation goes directly to that issue, particularly in schedule 5. It looks to strengthen the compliance and enforcement framework in the Fair Work Act to protect workers from wage underpayment, while supporting businesses to comply with their obligations, including through the introduction of a free advisory service for small business to ensure that employees can recover their correct entitlements more quickly.

I’m going to go into more of the detail of that in a minute, but I want to highlight that we recognise there are times when the government does need to put in place a framework. Concerns around the conduct of everyone from the ABC and Qantas through to small businesses have been raised in the media and raised by members opposite. This bill addresses them. I’m somewhat perplexed by the fact that those opposite and those on the crossbench are choosing not to support these measures which directly address some of the key concerns that have been raised in our community in recent years.

More broadly, the bill also goes on to provide certainty to businesses and employees by clearly defining what it means to be a casual employee and giving eligible casual employees certainty and a statutory pathway to permanent, full-time or part-time jobs if they wish. It extends the JobKeeper flexibilities around the duties and locations of work to businesses in the retail and hospitality sectors so that those businesses that have been doing it hard and their employees can continue to work together to find the best combination of conditions that will ensure the businesses survive and that those people continue to have a job. It gives employers greater confidence to offer secure part-time employment to employees and facilitate additional hours of work for part-time employees in retail and hospitality, people who often want more hours but aren’t getting them at the moment. We’ve heard comments from people in the media and those opposite about underemployment. Here is legislation that seeks to directly address the barriers that prevent employers having the confidence to provide those extra hours and yet it’s not being supported.

The bill also streamlines and improves the making of enterprise agreements, which will drive wage growth and increase productivity as a result of the increase in agreements. It also encourages investment in large projects by allowing for greenfields agreements which give certainty to all parties—employers, investors and employees—as to what those conditions will be for up to eight years.

Lastly, as I started with, it addresses the enforcement framework. That is where I would like to go, because the narrative which has been run by many in this chamber during the debate is that the government are on the side of big business and we’re pushing these reforms through at the request of big business and we’re just trying to support big business. That theme has come through repetitively, again and again. If we have a look at the compliance and enforcement section and particularly if we go through the Bills Digest, which very helpfully picks out some of the key measures but also looks at the stakeholder engagement and has the views of the various stakeholders who were consulted on this (it’s largely broken down into academia, the union movement and employer groups) what we find is that there’s actually a remarkable deal of support from unions for measures—for example, in the wage theft area—which are actually opposed by industry groups. In black and white, the Bills Digest—and that’s not a product of the government or the coalition; that’s a function of the independent parliamentary process—highlights very clearly that this legislation is actually seeking to put in the appropriate framework to protect workers, guarantee their entitlements and make sure that employers, whether they are the ABC, Qantas or a small business, who do the wrong thing face appropriate penalties and that workers get their entitlements. The fact that it is supported—in some particular clauses, which I will go to, there are some reservations about wording or who particular penalties are paid to, for example—in broad by the unions and opposed by business highlights that the opposition is playing politics with this as opposed to seeking real outcomes for workers.

Here is a case demonstrated in the Bills Digest where the government are not lining up with big business; we’re actually saying those who behave poorly should be held to account and those who behave poorly should pay a penalty and workers should get their entitlements. The amendments proposed in this legislation are opposed by business and supported by unions in general. So that highlights that what’s occurring here is political in nature. In the broad, this bill will better protect employees from wage theft; deter, by introducing tougher penalties, dishonest employers from undercutting their competitors; facilitate a more efficient recovery of wage underpayments; and encourage businesses to identify and address underpayments more quickly.

The better and stronger protections for employees will include tougher penalties and orders to deter noncompliance. These measures include a new Criminal Code offence for dishonest and systemic underpayments of one or more employees, with a maximum penalty of four years imprisonment, an automatic director disqualification for five years and/or a fine of over a million dollars, or over $5 million for a body corporate. Those are significant penalties. It’s not surprising in some ways that they were opposed by industry, but what they demonstrate is that the government are serious about saying that, whilst our philosophical position is that we should remove barriers and encourage business to take risks and invest and work to create wealth and jobs, when they get it wrong and it’s systemic and intentional then they should face penalties. Yet the Labor Party is opposing this measure.

The bill also increases maximum civil penalties for underpayments, sham contracting and failing to comply with regulator compliance notices, and increases penalties available under infringement notices. It prohibits employers from advertising jobs with pay rates below the relevant minimum wage and it clarifies that courts can make adverse publicity orders where appropriate. It goes on to expand and improve the small claims wage recovery process by increasing the small claims cap from $20,000 to $50,000, which allows courts to refer appropriate claims to the Fair Work Commission for faster resolution through conciliation or consent arbitration. It’ll encourage businesses to proactively identify and self-disclose where there have been underpayments and to rectify those more quickly and efficiently, which ensures not only that existing employees are recompensed but also that, going forward, employees get what they are entitled to under their conditions. It codifies factors that can be taken into account when deciding whether to accept an enforceable undertaking for wage underpayments, which will provide greater certainty for employers and employees.

Mr Burke, in the other place, said, on ABC radio in December 2020 that vulnerable workers getting their money back quickly has to be the highest priority. That is one of the key outcomes of schedule 5 to this legislation, and yet it’s being opposed by the Labor Party and the Greens. I’ll now go through some sections from the Bills Digest to highlight the consultation that occurred and the submissions and statements that were made publicly by unions and employer groups. What it highlights is that the rhetoric which is being put by those opposite that they’re opposing this because the government’s on the side of business and not workers does not stack up with the evidence. Schedule 5 deals with compliance and enforcement measures. The Bills Digest goes through, as per normal, outlining the broad areas. It outlines proposed amendments, which I’ve run through, being remuneration of employees, sham contracting, noncompliance, introducing a new penalty for remuneration related contraventions by bodies corporate and a new civil contravention that prohibits employers from publishing job advertisements with pay rates specified at less than the relevant national minimum wage. What I’d like to go to particularly is looking at some of the consultation in stakeholders’ views. The Bills Digest highlights that trade unions were generally supportive of the increased penalties. They did express some concern about subclause 546(3A), which goes to who penalties can be paid to. But they were generally supportive, whereas employer and industry groups generally opposed the changes. For example, the Australian Industry Group said, ‘As currently drafted many of the provisions in the bill are highly punitive.’ They put forward it ‘would operate as a barrier to jobs growth’. As I said, our philosophical position is to be small government and encourage the private sector because they’re the ones who generate wealth, they’re the ones who generate the opportunity for people to work and, generally speaking, the vast majority do the right thing.

But here in black and white is the evidence that the unions support the measure, with a couple of reservations, whereas industry have said they oppose it. Yet the government is putting forward this measure. We’re putting forward this measure in the interests of ensuring that that small group of people who inappropriately do things that disadvantage workers are held to account and that workers get their money back. That means that the opposition to this bill from those opposite is politically motivated, not in the interests of workers.

The same thing can be said about other areas, such as increasing the penalties for sham contracting. Again, the Bills Digest is very clear:

Trade unions support the increase to the penalties applicable for sham contracting …

Again, the trade unions have some suggestions around particular wording, with ‘not reckless’ being replaced with a ‘reasonableness’ test, but they generally supported this measure. But the Australian Industry Group opposed these amendments, saying that, at this time, they’re not justified. It is yet another example, in black and white, that, while these measures are consistent with our overall philosophy of small government, encouraging the private sector to create wealth and create jobs, for those who are doing the wrong thing, we will put in place a framework that holds employers to account, whether they be the ABC, Qantas or a small business, and we will look out for the worker.

I encourage those who are looking to oppose this bill not to play politics with the recovery of Australia’s economy and with secure jobs and pay for Australians and to support this legislation, which is in the interests of Australia and its workers.