On Monday, the Closing Loopholes Bill was introduced to Parliament by Tony Burke, Minister for Employment and Workplace Relations.
The changes have been framed in news media over the past fortnight as regulating Uber. But more impactful changes are just below the surface.
The Albanese government essentially passed the gig worker issue along to the Fair Work Commission. The new legislation grants power to the Fair Work Commission to regulate conditions for “employee-like workers.” The reforms will come into effect on 1 July 2024.
For gig workers, the most significant change is the protection against “unfair deactivation” from a platform like Uber. It’s the gig worker’s version of employees’ unfair dismissal protections. Gig workers will be able to refer a potentially unfair removal to Fair Work.
It would appear that Fair Work will not, however, become involved in setting the piece rates paid to gig workers. “The Commission also cannot include terms on matters that are primarily of a commercial nature,” says the government, “which do not affect the terms and conditions of engagement of workers.”
The bill contains more significant measures, however. One is to ensure subcontracted labour is not paid at rates below those stipulated in the industry-specific enterprise bargaining agreements. These labour hire or “surge” workers will have to be paid “at least” the award wage. Documentation accompanying the bill estimates this would save subcontracted workers $500m a year in lost wages.
For employers, perhaps the most dramatic change is the criminalisation of wage theft. As Tony Burke put it at the Press Club, in many workplaces an employee has access to the employer’s money through the till, and the employer has access to the employee’s money in paying wages. If it is a criminal offence for an employee to take money from the till, why shouldn’t it be when an employer takes money from an employee’s wage?
Criminal punishment will also extend to underpayment via subcontracting. Misrepresenting employment as independent contracting, or “sham contracting”, can also now attract criminal penalties.
Presuming the LNP opposes, the bill will require Greens’ support in the Senate. Adam Bandt has already flagged “a right to log off” as a condition of their approval.
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