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Closing Loopholes: Important repairs to the industrial reforms system, no more, no less

Labour hire workers can no longer be paid less than employees doing the same job in their workplaces as a result of industrial reforms passed by Parliament.

However, other important reforms to close loopholes in employment laws and stop exploitation of workers and avoidance of standards won’t be voted on in Parliament until next year.

This leaves gig platform workers and road transport contractors waiting to get much-needed minimum pay and conditions standards. 

On the final sitting day of Parliament for 2023, the government’s amended Closing Loopholes bill was passed.

With a Senate Inquiry into the bill due to report in February it was a surprise to many that some of the reforms were legislated, especially the so-called same-job, same-pay labour hire reforms that had been strongly contested by employers.

This reform targets gaps in laws that have allowed some large and profitable corporations, including BHP and Qantas, to use labour hire to engage workers on rates that undercut those agreed in enterprise agreements.

A Senate Inquiry heard evidence that, as a result of employers using labour hire this way, workers were being paid up to tens of thousands of dollars less than employees doing the same work in the same workplace. 

As with the government’s 2022 Secure Jobs, Better Pay bargaining reforms, opposition by some employers to this latest reform has been intense, involving an expensive and unnecessary scare campaign.

The mining employers’ advocacy body, the Minerals Council, was reported to be spending up to $24 million to fight the labour hire changes and, on the day of the bill’s passing, issued a statement greatly exaggerating the nature and extent of the reform by declaring it to be a ‘‘dramatic rewriting of workplace law’’.

To get the IR changes through the Senate the government needed to secure the support of key independents and, as a result of this, some parts of the Closing Loopholes bill were set aside to be considered by Parliament in February. 

The parts of the bill set aside until next year include minimum standards for digital platform and road transport workers and changes that make it easier for casual employees who want to become permanent. 

Getting the platform and road transport industry changes in place will be critical for improving working lives and ensuring fair pay and conditions for tens of thousands of low-paid and vulnerable workers who are currently without most rights to minimum standards at work, due to their classification as contractors. 

The reticence of independent senators Jacqui Lambie and David Pocock to pass the platform and road transport industry reforms is perhaps not surprising, given the strong and powerful lobby groups and companies such as Uber, who insist all platform workers are entrepreneurs and small business people not in need of protections, despite the numbers of young, inexperienced, migrant and vulnerable workers in these arrangements.

Platforms say the costs to consumers will increase exponentially. Small business groups argue reforms are all too complicated and may have far-reaching unintended consequences. 

Labour law experts disagree. It is to be hoped that the extra time for consideration of the proposed changes gives the independents an opportunity to go with the evidence.  

With the support of the Greens and the independent senators some other important Closing Loopholes reforms were in the legislation passed. 

These include new laws to make wage theft a criminal offence, reforms to better protect some workers’ redundancy entitlements and changes to enhance work health and safety.

Industrial manslaughter will now be a criminal offence, protections for workers experiencing family and domestic violence will be strengthened, and first responders/emergency workers with PTSD will have improved access to support.

Making superannuation theft a crime is a welcome outcome of the government’s negotiations with the Greens.

There can be little doubt of the need to act on intentional non-payment of superannuation, with the Australian Taxation Office recently reporting that Australian workers are owed more than $2 billion in unpaid superannuation. 

Superannuation theft not only affects workers’ retirement incomes but can see death and disability insurances cancelled.

The government has also agreed to consider an amendment to provide workers with a right to disconnect from work outside work hours.

Despite the protestations of some employer groups there is not much that can be called radical in the Closing Loopholes reform package.

For the most part, the reforms passed this year and the ones still on the table are exactly what the government says they are – improvements to plug gaps and close loopholes that have allowed some workers to miss out on basic protections, standards and benefits that most other workers enjoy and most employers are happy to provide. 

Dr Fiona Macdonald is policy director, Industrial and Social, Centre for Future Work at the Australia Institute

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