Chapter 2Key Issues

2.1Following passage of the Australian Government’s (Government’s) Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Secure Jobs Better Pay Act), the nation has experienced its fastest wage growth for a decade, as well as the strongest jobs growth for the first year of any Government. In addition, the gender pay gap is now at its lowest ever level and there has been a sharp decline in the number of days lost to industrial action.[1]

2.2However, many workers are yet to experience the full benefit of these changes due to loopholes in Australia’s workplace relations framework that allow pay and conditions to be undercut[2] in the pursuit of profits.[3]

2.3Some of these loopholes will be closed by the passing of the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023. These closed loopholes include the use of cheaper labour hire employees to undercut bargained wages in enterprise agreements.[4]

2.4As noted by a range of inquiry participants, the failure of the workplace relations framework to keep pace with these changes in the labour market means that some businesses now opt to compete ‘not through high-productivity strategies underpinned by ongoing employment relationships and investment in their workforce’ but rather by evading workplace laws:

Wage theft, gig platforms and the use of labour hire as an evasion tactic have become features of Australia’s modern labour market. None of these features existed when the foundations of the current system of workplace laws, centred as they are on collective bargaining, were first laid in 1993.[5]

2.5While it is recognised that most businesses do not use these loopholes, those who do so are able to undercut their competitors,[6] creating a race to the bottom in terms of worker pay and conditions.[7]

2.6As noted by submitters including the St Vincent de Paul Society, the Migrant Workers Centre and the Federation of Ethnic Communities’ Councils of Australia, this system has a disproportionate impact on workers in lower-skilled jobs, casual workers, young workers, women, single parents, workers on temporary visas and workers with disability.[8]

2.7The race to the bottom in terms of pay and conditions is also linked inextricably to worker safety, with decades of academic research, coronial inquests, inquiries and judicial decisions demonstrating conclusively that unsustainable economic pressures—including low pay rates and standards—are contributors to poor safety in the road transport industry and ‘a major cause of road transport deaths’.[9] Indeed, between 2016 and 2020, the road transport industry had the highest rate of fatalities of all Australian industries. Australian truck drivers are also 13 times more likely to die doing their job than the average Australian worker—with obvious implications for the safety of other road users.[10]

2.8In addition, the committee heard that injury among gig transport workers is ‘endemic’ but often unreported, with 73 per cent of food delivery workers fearing serious injury or death while at work and one third having been seriously hurt or injured.[11] Tragically, at least 13 food delivery drivers have died on Australian roads in recent years,[12] with research again linking pay and industry pressures to the safety of workers in the gig economy.[13]

2.9According to submitters such as Associate Professor Chris F. Wright, achieving these aims will be ‘integral for encouraging businesses and industries to compete in the race to the top that Australia’s continued and future prosperity hinges on, rather than engaging a futile race to the bottom that Australia can never win’.[14]

2.10The remainder of this chapter explores participants’ general views on the bill as well as specific observations on five of the bill’s key provisions.

General views on the bill

2.11During the inquiry there was broad support among both employer and employee groups for a range of measures in the bill, including the small business redundancy exemption, bargaining measures, strengthening protections against discrimination, penalties for civil remedy provisions, compliance notice measures, withdrawal from amalgamations, amendments to the Asbestos Safety and Eradication Agency Act 2013, the Safety, Rehabilitation and Compensation Act 1988, and the Work Health and Safety Act 2011.[15] All of these measures were included in the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 that received Royal Assent on 14 December 2023.

2.12There was also significant industry consensus around the road transport provisions of the bill, with the Australian Road Transport Industrial Organisation (ARTIO), the Transport Workers Union (TWU), the National Road Transport Association (NatRoad), and the National Road Freighters Association (NRFA) issuing a joint statement in strong support of the road transport reforms, along with proposed amendments.[16]

2.13As the NRFA acknowledged in its submission:

Never have we had Drivers, Owner Drivers, Small Business, Large Business, Multinational Business, Industry Groups, and Unions coming together to fight for the same reform for our industry.[17]

2.14Further, a range of participants, such as the Centre for Future Work (CfW), the StVincent de Paul Society, and the Working Women’s Centre South Australia offered broad support for the bill,[18] while a significant number, including the Australian Federal Police Association, Hireup, Per Capita, and Catholic Social Services Australia called explicitly for the bill to be passed.[19] In urging Parliament to pass the legislation, the Australian Services Union (ASU) stated that:

In all industries, work has become less secure and more precarious. For far too long, businesses have used loopholes and sharp legal strategies to undercut the pay and conditions of Australian workers. Our industrial relations system must be rebalanced to provide fairness to work people. Every worker deserves the same protections, whether they are contractors, labour hire, on demand and or casual workers casual workers. The Closing Loopholes bill will ensure that every Australian worker can enjoy the same protections and minimum standards. It is time for Parliament to close the loopholes…[20]

2.15In addition to the above support for the legislation, numerous participants, including the Australian Trucking Association, the Australian Council of Trade Unions (ACTU), the Flight Attendants’ Association of Australia, the Australian Workers Union, the Electrical Trades Union, the Finance Sector Union, and Professionals Australia supported passage of the bill with some amendments.[21]

2.16Some submitters, such as the Rideshare Driver Network (RDN), described the bill as ‘a helpful and modest attempt to reform the Act’ but suggested that the reforms should go further ‘to anticipate and be ahead of future developments in the way we work’.[22]

2.17In a similar vein, the TWU pointed to the known link between worker pay and conditions and safety:

The loopholes in the system have been exploited to drive down wages and conditions in the pursuit of profits. … When standards are lowered, there are far-reaching consequences across the economy that impact businesses and the community. Safety standards are inextricably linked to a strong, secure workforce. The chipping away of that workforce through fragmentation and the destabilising of conditions can have deadly consequences on our roads and in our skies.[23]

2.18Views were more mixed in relation to provisions of the bill dealing with casual employment, and gig economy workers. While there was overwhelming support for these measures from employee organisations and other groups,[24] a number of industry bodies and employers raised concerns about the measures, including concerns about their perceived complexity.[25]

2.19However, concerns about complexity were not universal. For example, DrEugene Schofield-Georgeson pointed out that certain provisions, such as the definition of casual employment, were necessarily detailed. According to DrSchofield-Georgeson, this was because the bill anticipated the common law interpretation of casual employment, which ‘has been decidedly politicised against employees’. He went on to state that ‘quite clearly, the High Court has made it necessary for the legislature to nail down its requirements in agonising detail’.[26]

2.20Other witnesses, such as Emeritus Professor David Peetz questioned claims that the bill was too complex particularly as ‘the bottom line for businesses that are trying to implement these provisions is really going to be what’s coming out of the [FWC] determination’ and the FWC ‘ is not going to try and make things any more complex than they need to be’.[27]

2.21In addition, Associate Professor Wright highlighted the ‘opportunistic and contradictory’ nature of the arguments put forward by opponents of the bill, describing much of the criticism as ‘misleading, self-serving and evidence-free’. Associate Professor Wright continued:

Perhaps this is unsurprising given that the same groups who claimed that the multi-employer bargaining reforms in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 were too ambiguous are now saying the provisions of Closing Loopholes Bill are too complex.[28]

2.22Conversely, participants such as the ACTU pointed to the complexity created by the loopholes themselves. For example, by not providing an effective deterrent to—or means of addressing—wage theft, the current system leaves workers facing ‘a complex and lengthy process to claim the money they are rightfully owed’ which can ‘take months, or years and require hours of their unpaid time’.[29]

2.23Similarly, Professionals Australia pointed to the proliferation of non-standard forms of work, which have ‘created complex arrangements, which lack transparency, do not reflect the reality of the working relationship and seriously undermine the provision of fair and reasonable remuneration and conditions of employment to workers’.[30]

2.24In addition to concerns about complexity, some employer and industry organisations questioned the bill’s potential impact on productivity and innovation,[31] with more than one submitter warning that growth in real wages was dependent on increased productivity.[32]

2.25However, the Department of Employment and Workplace Relations (department) noted that the bill was ‘carefully balanced’ and designed so as to not unnecessarily increase impacts on business or add to productivity drags’.[33]

2.26Other participants noted that the loopholes the bill aims to close are themselves a handbrake on productivity and innovation. For example, according to the CfW, the expansion of insecure employment models has worked to undermine productivity, as well as fairness, living standards and accountability.[34]

2.27Associate Professor Wright also questioned the basis for claims of negative impacts on productivity and innovation. Instead, he argued that, while not strong, the evidence suggests the measures proposed in the bill would be more likely to encourage positive competition:

Unfortunately, these groups have not offered much, if any, evidence in support of their claims. To the contrary, research evidence suggests that measures promoting permanent employment, job security and collective bargaining are more likely to encourage businesses to compete through those high-productivity and innovation enhancing strategies that the architects of our current system envisaged, rather than by undercutting or evading minimum legal standards.[35]

2.28Emeritus Professor Peetz concurred and pointed out that higher productivity arises from investment in processes and technology that increases the output per unit of labour input, rather than from making labour cheaper. To this end, he suggested that rather than working to impede innovation across the board, the bill would instead ‘stop the type of innovation that’s just based on finding a new way to cut worker costs and to cut worker incomes’.[36]

2.29In addition, some submitters pointed out that for more than a decade almost all productivity growth has been taken in profits, rather than going to fund increases in real wages.[37] The ACTU went further and called out the ‘extraordinary misinformation’ spread by opponents of the bill:

I’ll offer just one response to the many absurd claims about the economic impact of this bill. Last financial year businesses posted a record $1.1 trillion in profits. The government’s estimated cost of this bill is that it will cost these businesses just 0.08 per cent of those profits—at a time when their profits are $1.1. trillion. It means so little to them, but it could mean a huge amount for a disability support worker engaged on a platform or a flight attendant being paid half the rate of her colleagues. These employers’ tactics of misinformation are straight out of the Trump playbook: fill the airwaves with nonsense, make your opponents waste time responding, sow doubt in the minds of decision-makers and the undecided, and trash the democratic process along the way. Mining companies and big business will say and do anything to prevent parliament stopping their wage-cutting schemes, and they’re also putting $24 million behind this campaign. We cannot let those with the deepest pockets subvert the democratic process. I hope and know that senators won’t fall for this.[38]

2.30Despite criticising aspects of the bill, a range of participants, such as the Australian Trucking Association, Clubs Australia, Menulog and the National Retail Association recognised the consultation undertaken by the Government in developing the bill.[39] Some, including the Ai Group, the Housing Industry Association, and the Australian Retailers Association (ARA) acknowledged that some of their concerns and recommendations had been addressed through this process, even if they remained opposed to parts or the entirety of the bill.[40]

Comments on specific aspects of the bill

2.31While participants provided feedback on various aspects of the bill, five of the provisions most commonly raised were those relating to:

Standing up for casual workers;

Setting minimum standards for workers in the gig economy;

Setting minimum standards for the road transport industry;

Enhancing delegates rights for regulated.

Standing up for casual workers

2.32As outlined earlier in this report, the bill would make changes to the FW Act to strengthen protections for casual workers, so workers considered casuals that actually work permanent hours could access more employment security and benefits. As the Explanatory Memorandum states, the bill:

…would provide casual workers with a greater ability to make a choice about their employment status, by providing a pathway to move to permanent employment if they wish. Under the amendments, an employee would have the opportunity to move from casual employment where they are in fact working like a permanent employee. The choice to change status would rest with the employee; no employee would be forced to change employment status. Rather, the amendments would strengthen the pathway to permanent work for employees who choose it.[41]

2.33More specifically, these provisions include: amending the definition of ‘casual employee’ in the FW Act; setting out guidelines for employees and employers to determine whether there is an advance commitment to continuing and indefinite work; amending the National Employment standards; and repealing existing provisions for dispute resolution over causal conversion.[42]

2.34Proposed amendments relating to casual workers were supported by a broad range of stakeholders. For example, employee representatives unanimously saw the amendments as a positive step forward for workers. This was summed up by the ACTU, which argued that the increasing use of casual employment ‘where ongoing, regular work occurs is a major contributor to the rising lack of secure employment in Australia’, and that:

There’s a big difference between casual work that’s genuine, mutual, agreed and understood versus a situation where a worker is told they’re ‘casual’ but expected to be available and work as if they are permanent. This problem needs to be addressed, in the interests of fairness, so that workers don’t miss out on leave, job security and other rights and entitlements just because they’re incorrectly labelled.[43]

2.35Similarly, the Victorian Trades Hall Council submitted:

Employers have long taken advantage of loopholes regarding casual workers to misclassify ongoing workers as disposable. It is not acceptable for workers who have set shifts and are long serving at their employer to be denied the certainty of permanent work simply because their pay slip says ‘casual’. Providing casual workers the option to convert to permanent work is an important step in ending the toxicity of insecure work in Australia.[44]

2.36Peak bodies representing community services and support for people affected by disadvantage also supported the approach of the bill. The Australian Council of Social Service considered the bill’s provisions would help prevent the misclassification of workers as casual employees and improve pathways to more secure employment. It noted:

This would improve economic security for people in financially vulnerable circumstances.

Casual employees are more likely to come from disadvantaged groups who are marginally attached to the labour force. They are also likely to earn less than other employees, suffer financial hardship and lose their jobs in the event of an economic downturn.[45]

2.37Catholic Social Services Australia supported proposed changes to the greater choices for casual employees that the bill would create, regarding pathways to permanent employment, or attaining permanency when they are, in fact, working like a permanent employee.[46]

2.38Some experts saw the bill’s reform of casual provisions as timely and important. For example, Professor Andrew Stewart suggested that it was ‘imperative’ that amendments related to ‘sham casual’ positions were passed:

…on the basis that they address the most flagrant situations where casual employment is being misused: those where there is an expectation from the outset that the employee, although described and paid as a casual, is to perform regular and ongoing work that is indistinguishable from that of permanent staff.[47]

2.39The Law Council saw the bill as providing some certainty for an existing issue in employment law, as it:

…addresses the common complaint of businesses in relation to the common law approach: namely, that someone who was legitimately employed from the outset as a casual could successfully claim they had over time become a permanent employee due to changes in the work relationship. The bill does this by making clear that, if an employee is originally and legitimately employed as a casual then thereafter, they remain a casual unless they either make a successful application to convert to permanent employment or, having failed in their request, they make a successful application to the FWC to become permanent.[48]

2.40The provisions of the bill relating to casual workers were also strongly opposed by some employer groups in evidence, with some arguing the proposed amendments are ‘unworkable’ and should not proceed.[49]

2.41Legal advice on the bills undertaken for the Business Council of Australia (BCA) suggested that the reforms to casual employment would make ‘radical changes’ to the current framework, which would cost jobs and have flow-on effects for consumers.[50] In an opinion piece based on this advice by the BCA Chief Executive, MrBran Black, argued the bill could have ‘dire implications for the future of casual work’:

Faced with the challenges that will arise from the new and unworkable definition of casual employment, I expect that many employers will decide to structure their workforce so casual employment is no longer a choice for employees. They’ll only be left with inflexible full and part-time employment. Alternatively, casual employment might be reduced to an unattractive offering for employees that is characterised, from the get-go, by irregular shifts, no representations about any certainty of shifts, and short-term employment to mitigate as much as possible any risk of the employment drifting into something more permanent.[51]

2.42Appearing before the committee, Mr Black drew out some negative ramifications of the bill for workers:

We’re deeply concerned that the bill will actually harm the people that it’s intended to benefit— that is, workers. If you take casuals as an example, the bill would inject uncertainty into an area that has had a significant degree of certainty for some time. There is a clear, easy to understand definition that is applied right now. It’s being replaced with a complicated 12-part, three-page test and, necessarily, what that means is there is a complexity which businesses are going to have to deal with day to day, compounded by the fact that there is a penalty associated with misrepresenting somebody’s status as a casual or as a permanent worker. So when you add that dimension to the existing complexity, you will necessarily see businesses take steps to mitigate their risk... What we will see as a consequence of those types of steps is a potential reduction in the casual work that is available. We will see employers cautious in their engagement of casual workers. That necessarily means that we’ll be looking at less casual work across the economy and that’s bad for workers.[52]

2.43Other business groups also claimed a number of potential negative outcomes would come from the bill. The Australian Chamber of Commerce and Industry (ACCI) submission argued that:

The proposed changes to casual employment will make it harder for businesses to engage casuals. Both employer and employee expect that when they agree to a casual employment arrangement, that this will be upheld. These changes undo this certainty.

The shift to abstract, broad and conceptual notions will cause uncertainty for businesses, especially small businesses who have dealt with many new laws in the last few years. The only winners from these changes will be plaintiff law firms and litigation funders who will benefit from an increase in class action claims arising because of a vague definition of casual employment. It will not benefit those people who value working flexibly as a casual employee, including those with caring responsibilities or students.[53]

2.44Other business groups raised concerns about a lack of clarity on certain definitions, including ‘regular pattern of work’ and ‘casual employees’ in relation to particular forms of work or industries.[54] For example, Mrs Heidi Cooper, the Chief Executive Officer (CEO) of the Business Chamber Queensland (BCQ), argued that the small business community was concerned about two issues: the changing definition of what a casual employee; and potential regulatory burden of keeping track of casual employees. On the first matter, she stated:

One of the primary areas we see as a concern is the changing definition around what a casual employee is. We are concerned about that in a couple of fronts. One is because we know that we have a very established process for determining a casual employee. It is predominantly determined by the agreement that is reached between the employer and the employee in the contract. The proposed definition is of concern to us because we think it adds complexity and uncertainty to the relationship.[55]

2.45The ARA argued that changing the definition of casual work would ‘inhibit flexibility for both employees and employers’, and potentially lead to negative outcomes, including:

These changes could create a disincentive for retailers to engage seasonal casuals on short-term, fixed work patterns during peak trading periods, which are often to the mutual benefit of both employer and employee.

There is also a risk that this new definition of casual employment would discourage employers from offering regular patterns of work to casual employers who may prefer certainty in terms of their working hours, without any intention of ever converting to a permanent role.

In respect of casual conversion, data and insights from our members suggest that most casuals working in the retail sector do not want to convert to permanent employment.[56]

2.46The Council of Small Business Organisations Australia also argued that the new definition of casual work would introduce uncertainty and affect the ability of small businesses to employ casual staff. This would, it suggested:

…lead to the creation of fewer jobs in the economy, particularly for students, parents, carers, and those with a disability. For many small businesses, just taking on an additional employee might be the most significant risk in their financial year. By shifting the risk dial upwards, the Bill will prevent many of these employment decisions proceeding and thereby decreasing opportunities.[57]

2.47Some business groups advanced the view that current conversion pathways were already more than adequate, although this view was not shared by other stakeholders. ACCI said that the ‘existing definition provides certainty to employers and is consistent with the common law. The existing conversion right already provides casual employees with adequate pathways to part-time or full-time employment’.[58]

2.48Mrs Heidi Cooper of the BCQ also addressed this matter:

We are also concerned about the changes in the conversion process from 12to six months in certain circumstances. There is already a very established and effective pathway for conversion…But we need to be really clear that it is very important that if an employee chooses to be a casual that they can continue to do that with an agreement with the employer without concern from the employer’s perspective that that could be looked at retrospectively or that there could be a concern for the employer in that space. We know that there is a portion of employees and workers who are wanting to be on casual arrangements and it is important that happens and a regularity of pattern of behaviour of work, which is often determined by the availability of the worker, shouldn’t be the determinant around the casual element. It is really important that is clear and that it doesn’t create uncertainty going forward.[59]

2.49On the potential complexity of definitions related to casual employment in the bill, Dr Schofield-Georgeson, noted that some complexity was necessary, as the current framework was decidedly more favourable to employers than employees. Given this, he saw the change to casual employment as ‘a laudable effort to counteract the current one-sided statutory definition’, even if it was lengthy. Similarly, changes to the approach to casual conversion were cast as ‘commendable–albeit complex’, as:

In effect, the current conversion decision rests squarely with the employer. The proposed legislation, by contrast, permits two ‘pathways’ for casuals to become ongoing part-time or full-time employees. Its complexity essentially stems from recognising the needs of both parties to the casual employment relationship, rather than simply those of the employer, as the previous legislation did.[60]

2.50The supplementary submission made by the department addressed some stakeholder concerns about certain definitions contained in the bill. On ‘regular patterns of work’, the department noted that:

Given the concern expressed about this issue, the Minister… has indicated that he intends to introduce amendments to provide clarity and certainty to employers and employees about the operation of the definition. The amendments will clarify that no single consideration, like a regular pattern of work, is determinative of whether a person is a casual employee. The amendments would also clarify that it is possible for a person to have a regular pattern of work and still meet the definition of a casual employee.[61]

2.51On the definition of casual employees, the department noted concerns raised by stakeholders on its application to particular industries:

The bill expressly recognises that employers may need to engage employees on a casual basis for a specified season, for example, during a harvest. Where a contract of employment provides that it will terminate at the end of an identifiable period other than by reference to a season or the completion of the shift of work to which the contract relates, the employee is not a casual employee–they are engaged on a fixed term basis.

Where an employee undertakes work for a business under a labour hire arrangement, the status of the employee’s engagement is determined by reference to their relationship with their employer–that is, the labour hire firm, not the business for whom they perform work. The nature of labour hire work would generally mean that at the time of engagement, it is less likely that employees would have a firm advance commitment to ongoing employment. Under the existing definition, all employers, including labour hire employers, assess whether the employee meets the statutory definition when engaging them. The bill will not change this, and it will still be possible for a labour hire firm to engage casual employees where the employment relationship meets the definition.[62]

2.52The Australian Hotels Association (AHA) suggested to the committee in a hearing that, after some initial scepticism about reforms to casual provisions, it considered that ‘the amendments provide the right balance and will ensure certainty for casual workers and employers alike’. In coming to this conclusion, the AHA highlighted advice provided by the Minister’s office that had reassured them of the bill’s reforms, which committed to a number of matters:

As discussed, the Minister commits to AHA that he will amend the Closing Loopholes Bill to:

1. Remove s 359A (the misrepresentation offence)

2. Amend the definition of casual at 15(3)(b) to provide that no one factor in paragraph 15A(2)(c) is determinative of status.

3. Add a note explicitly stating that it is possible under the provisions to be a casual with a wholly regular pattern of work, and also no firm advance commitment to continuing and indefinite work.[63]

Setting minimum standards for workers in the gig economy

2.53At present, most digital labour platforms engage workers as independent contractors, rather than employees.[64] Unlike employees, independent contractors are responsible for their own income tax, insurance and superannuation.[65]

2.54While some digital platform work allows workers to build their own businesses or generate income in ways reflective of genuine independent contracting arrangements, for other gig economy workers, this is not always the case.[66] Indeed, many gig economy workers lack access to workplace protections and experience lower overall income and poor job security,[67] with the United Workers’ Union (UWU)having described digital platform gig work as ‘rife with exploitation’.[68]

2.55This was reflected in evidence from submitters such as the Uniting Church in Australia – Synod of Victoria and Tasmania[69] and Dr Michael Rawling, who noted that the exploitation of gig economy workers has led them to experience low pay and poor safety.[70]

2.56A similar view was shared by Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, who highlighted the exposure of gig economy workers to competition on labour costs, their general inability to challenge deactivation, as well as the established link ‘between precarity and workplace injuries’.[71]

2.57Expanding on this, the ACTU explained that gig economy workers are currently subjected to low pay, work insecurity, a lack of access to workplace protections (such as minimum wages, paid sick leave, holiday pay and superannuation), a lack of access to collective bargaining, a lack of coverage by the platform’s workers’ compensation insurance, pressure to underbid or to accept work and deliver at unsafe speeds, as well as surveillance and performance pressures that can limit or end work opportunities.[72]

2.58This was borne out in the findings of the largest ever survey of gig economy workers conducted by the McKell Institute Queensland, in conjunction with the TWU and the Transport Education Audit Compliance Health Organisation (TEACHO). The survey found that:

most respondents worked more than 30 hours per week, with 41 per cent of respondents working more than 40 hours per week;

81 per cent of respondents relied on gig economy income to pay for essentials (rather than as a source of additional income), with 45 per cent having struggled to afford groceries and household bills;

45 per cent of respondents earned rates of pay below the minimum wage, with this figure rising to 57 per cent in the food delivery sector, and 66 per cent for those drivers working over 40 hours;

25 per cent of respondents had been injured at work, with 51 per cent having felt pressure to rush or take risks to make enough money or protect their job; and

25 per cent of respondents had been de-platformed at least once by their contract provider.[73]

2.59It was also supported by evidence from submitters such as the RDN, which pointed to ‘highly unsafe and unfair’ work patterns for rideshare drivers—many of whom live and work in their cars and need to ‘work twice the number of hours to earn the equivalent of minimum wage per hour’.[74]

2.60To this end, the McKell Institute survey found that over 95 per cent of respondents supported greater regulation in the gig economy,[75] while other research has revealed ‘broad based support amongst the Australian public to at least have a level of minimum standards and entitlements for vulnerable ‘gig’ workers like food-delivery riders’.[76]

2.61Hireup, a digital platform that directly employs 17 000 workers, described the independent contracting model as the ‘”big lie” at the heart of the gig economy’:

The idea that someone driving you across town in a rideshare car is somehow an ‘entrepreneur’. Or that the university student providing disability support via an app is running a legitimate ‘small business’. Or that the person delivering your pizza on the back of a bicycle is a genuine ‘independent contractor’.[77]

2.62Indeed, some participants submitted that a significant number of gig economy engagements are essentially employee-like in nature. For example, both the Working Women’s Centre South Australia and Professor Andrew Stewart pointed out that many gig economy workers report features consistent with employment such as having a uniform or car branded with the company logo, being supplied with equipment or facilities, needing to work at particular times, and not being allowed to sub-contract work to others.[78] Similarly, Emeritus Professor Peetz suggested that many, although not all, gig workers are ‘likely to be employees in terms of the control exercised over them’.[79]

2.63Indeed, according to submitters such as the HSU and Per Capita, a significant number of digital platform workers are not aware of their employment status, or their workplace rights and responsibilities.[80]

2.64In addition, Professor Stewart reported that 28.4 per cent of the platform workers identified in a 2019 survey of internet users said that their primary platform ‘treated them as if they were employees’, with this being most prevalent in the care services, transport, and food delivery sectors.[81]

2.65According to participants such as the ACTU[82] and Hireup, this situation has arisen as a result of the limitations of Australia’s binary workplace relations system, which has not kept pace with new, technology-driven forms of work:

Our society has turned a blind eye to the fact that (in the majority of cases) people finding work via online platforms and apps are actually employee‑like workers who deserve all the same rights, entitlements and protections owed to any other worker, but who have fallen between the cracks of outdated employment law and the rise of technology-powered work.[83]

2.66As explained by Dr Rawling, this also creates an unlevel playing field for businesses, with some platforms using independent contracting arrangements to undercut platforms trying to provide fair pay and conditions:

The extreme exploitation of gig workers …places downward competitive pressures on other businesses in the same industry. This downward pressure includes the undercutting of wages and conditions of workers at those other businesses. This pressure emanating from gig arrangements makes it much more difficult for those other businesses to maintain or implement fair and compliant wages and conditions.[84]

2.67This point was underscored by Drs Veen, Goods, Smith, and Barratt, who noted the importance of setting minimum rates for gig economy workers given the incentive for operators in low profit margin industries to engage in a ‘race-to-the-bottom’ via competition on labour costs.[85]

2.68According to Professionals Australia, it has also allowed businesses to shift the ‘responsibility and costs for employment (such as training, insurance, superannuation, etc) away from the employer to the employee’.[86] This shift was also criticised by platforms such as Sidekicker,[87] Humdrum[88] and Hireup, which described it as ‘the most insidious aspect of the platforms’, as it enables privatising of profits while losses are socialised to the broader community:

Instead of contributing to workers compensation schemes, worker injury costs are borne by state traffic accident schemes or the public health system. Instead of paying superannuation, governments have higher aged pension costs. Instead of return to work programs, social security has to cover costs.[89]

Minimum standards for employee-like workers

2.69As described in Chapter 1, the bill would allow the FWC to set minimum standards for employee-like digital platform workers. It would also introduce a consent-based collective agreements framework and access to dispute resolution for unfair deactivation from a digital platform.[90]

2.70These provisions were supported by multiple participants, including the UWU, Catholic Religious Australia and the McKell Institute, as well as digital platforms like Hireup, Sidekicker, and Humdrum.[91]

2.71The changes were also supported by Professor Wright, who noted that the social licence of new business types—such as the gig economy—is contingent on them ‘not undermining the regulatory framework including the integrity of the bargaining system’.[92]

2.72The ACTU, Catholic Social Services Australia, Professionals Australia and the St Vincent de Paul Society also supported the measures but argued for the measures to be extended to all gig workers, not only those engaged via digital platforms.[93] Further support was provided by the Law Council of Australia, which agreed with the need to strengthen protections for employee-like workers.

2.73While raising some concerns about the operation of the bill’s provisions, the concept of minimum standards for workers was also supported by a range of platforms, including Menulog, DiDi, Uber, Mable, DoorDash, and Airtasker.[94] For example, Mr Dominic Taylor or Uber told the committee:

For me, I’m incredibly proud of where this legislation takes the rights of gig workers here in Australia. It’s a big step forward. We still think there are ways that we can improve it, but this will result in improving the quality of gig work here in Australia.[95]

2.74Continued platform opposition to parts of the bill was anticipated by Professor Anthony Forsyth, Professor Shae McCrystal and Associate Professor Tess Hardy, who noted that the major platforms ‘have and will continue to lobby vigorously’ against the reforms, ‘including threats to depart from the Australian market’. In response, they encouraged the Parliament to:

…recognise that the gig economy—despite its claims of innovation, flexibility, and choice for workers—ultimately relies on the performance of labour to function. The workers who perform that labour are as deserving of decent work and the protection of minimum standards as any others.[96]

2.75In his evidence to the committee, Mr Jordan O’Reilly of Hireup summed up the importance of passing the bill for both gig workers and the broader economy:

If this bill is passed, I believe the best of the flexible economy will find a home in sustainable ethical enterprises that balance worker rights with technological advancements... Not passing this law would tell leaders of Australian businesses that we’re happy with the status quo—indeed, happy that the approach adopted by some outliers in the gig economy continue to become the norm across the whole economy. We believe that would accelerate a transition to a very different economy where more workers in more industries go backwards in terms of rights and entitlements. That’s why we welcome the closing loopholes bill. If passed, it would create certainty which would shape the economy in a positive way. Every company hiring workers, be they platform technology businesses or otherwise, would have to play by the same rules, and those would maintain the fundamentals of employee or employee-like rights.[97]

2.76Despite broad support for the reforms, some participants raised concerns about the potential impact of these provisions, which focused largely on the potential:

scope of the reforms;

impact on flexibility for workers;

increased costs for users and reduced demand for labour; and

implications for the care economy.

Reform scope

2.77Some participants, such as the BCQ, DiDi, Direct Selling and the Minerals Council of Australia (MCA) raised concerns about a lack of guardrails around the FWC’s powers to set minimum standards as well as the potential for the gig economy provisions to capture genuine independent contractors (including tradespeople) and direct sellers.[98]Some submitters also raised concerns about the range of terms that could be included in a minimum standards order.[99]

2.78Despite this, more than one submitter acknowledged that the bill would not have the broad application described above. For example, the Housing Industry Association noted that the employee-like worker provisions would not apply to independent contractors in the residential building industry.[100] In addition, Direct Selling admitted that it had received assurances from the Minister and the department that direct selling would not be captured by the legislation.[101] It should be noted that subsequent to its appearance before the committee, Direct Selling acknowledged it does not have any independent contractors or direct sellers as members – rather its membership is comprised solely of wholesalers.[102]

2.79Further, the department highlighted the three key thresholds that must be met for the measure to apply, which means that the changes would not affect ‘independent contractors who have a high degree of control and autonomy over their work or do not perform work via a digital labour platform’.[103]

2.80As explained by Professors Forsyth, McCrystal and Hardy, this means that employee-like workers would be:

… self-employed workers operating at the bottom of the labour market, with little to no bargaining power, and who have not been able to lift their wages to the level that they would receive had they been employed.[104]

2.81In relation to concerns about the content of minimum standards orders and a lack of guardrails for exercise of the FWC’s powers, the department emphasised the bill’s clear intent to introduce minimum standards in a way that does not disrupt business models. To this end, the department pointed to the Minister’s proposed amendments to the bill to ‘further ensure the FWC sets minimum standards in a way that is fit-for-purpose for the type of work and meets the needs of employee-like workers, and those who rely on the services provided by digital labour platforms’.[105] The Government’s proposed amendments are set out in Table 2.1.

Source: DEWR, Supplementary Submission 42.1, p. 18.

Flexibility for workers

2.82Some participants, such as DoorDash suggested that the bill could result in independent contractors becoming employees in all but name.[106] DoorDash, as well as other submitters including the Canberra Business Chamber, and the ARA, raised concerns that this could reduce flexibility for gig economy workers as well as remove the ability for independent contractors to set their own rates.[107] It should be noted that no gig economy workers, or organisations representing gig economy workers, shared these concerns with the committee.

2.83Further, in relation to pay rates, Dr Michael Rawling noted that as the bill would introduce minimum standards—rather than a ceiling—the ability of contractors to set higher rates should not be affected.[108]

2.84In addition, Hireup noted that while workers often cite flexibility and autonomy as benefits of gig economy work, they were less enthusiastic about ‘below-award pay rates, missing superannuation, unpaid tax bills, algorithmic management and unfair dismissal, limited insurance and extreme work health and safety (WHS) liability’.[109]

2.85The McKell Institute concurred and argued that that while there has been a proliferation of gig work ‘under the guide of flexibility’…flexibility is not an end in and of itself’ and in this context ‘is a merely synonymous with insecurity’.[110]

2.86Some participants also questioned claims about the degree of flexibility available to workers on digital platforms. For example, the Health Services Union (HSU) highlighted the ‘unilateral, take it or leave it terms and conditions digital labour platforms impose on workers’ via ‘contracts of adhesion’ that preclude any ability to negotiate or bargain—’workers are quite literally told to lump it or leave’.[111]

2.87Further, a range of submitters, including Associate Professor Wright, highlighted that many people who work in the gig economy do so ‘because they have no other options, which is often the case for temporary residents who form a significant share of food delivery riders’.[112] The Migrant Workers Centre expressed a similar view and explained that ‘due to lower barriers to entry, many migrant workers engage in app-based work, which is insecure, irregular, and as recent incidents demonstrate, increasingly unsafe’.[113] Likewise, PerCapita reported that workers engaged via digital platforms were more likely more likely to be young, live with a disability, be in Australia on a temporary visa, or come from a culturally or linguistically diverse background.[114]

2.88Despite raising concerns about the potential for the bill to reclassify contractors as employees, DoorDash, along with other digital platforms such as Menulog and Uber, acknowledged that the Minister had already confirmed there was no intention to do this.[115]

2.89The suggestion that the bill would result in gig economy workers becoming employees was also refuted by workplace relations experts such as EmeritusProfessor Peetz, who explained that the provisions were deliberately designed to provide protections for workers while retaining the flexibility of gig economy work:

… part 16 here is saying, ‘No, we’re not going to turn you into employees; in effect, we’re going to allow the Fair Work Commission to regulate the remuneration that you get and, potentially, other aspects as well, such as those dealing with health and safety and so on’. Basically, those workers will say, ‘Yeah, that sounds like a good idea,’ because they want the protection, but they don’t want to lose their flexibility. I think that’s really one of the big pluses of this approach compared to previous thoughts, which have really been around ‘let’s bring the gig workers in as employees’.[116]

2.90The HSU concurred:

The employee-like provisions of the Bill are unequivocal that the provisions will not have the effect of changing the form of engagement or the status of employee-like workers on digital labour platforms from independent contractors to employees.[117]

2.91Further, the department pointed to the clear intent in the bill that that the provision of minimum standards to employee-like workers would not disrupt platforms’ business models. The department also noted that the Minister intends to amend the bill to further ensure minimum standards would be set in a way that is fit-for-purpose and meets the needs of employee-like workers, as well as those who rely on digital platform services.[118]

2.92A further proposed amendment would make clear that ‘employee-like workers to whom an employee-like minimum standards order applies are not an ‘employee’ of any person in relation to that work’. In addition, it will also be made clear that platforms would not be ‘liable for both minimum standards under the employee-like provisions and employment entitlements where a minimum standards order applies’.[119]

User costs and reduced demand for labour

2.93Some participants, such as the Council of Small Business Organisations Australia, the Restaurant and Catering Industry Association, DoorDash and the Centre for Independent Studies cautioned that the proposed reforms would lead to increased costs for platforms and consumers, which could have a flow on impact in terms of reduced demand for labour.[120]

2.94However, Drs Veen, Goods, Smith and Barratt contended that broader macroeconomic conditions were likely to have a much greater impact on demand for gig economy services:

While increasing prices may somewhat reduce demand, this is not the only factor which needs to be considered. Given that a service like food-delivery is a luxury expense, broader macro-economic trends like inflation and cost-of-living pressures are likely to have a far larger effect on the demand for these services.[121]

2.95In addition, Drs Veen, Goods, Smith and Barratt noted that arguments about the potential for job losses had been used by employers and employer associations to argue against increases in minimum and award wages—with arguments for jobs growth used to support reductions in penalty rates—neither of which have eventuated. Again, macroeconomic conditions were thought to have a far greater impact on employment:

For instance, the reduction of Sunday penalty rates, in 2017 and 2018, did not lead to a positive increase in employment. In reverse, the significant increase to minimum and award wages in 2022 does not appear to have dampened employment levels, with Australia currently experiencing historic low unemployment. If anything, more macro-economic conditions like changes to commodity prices, interest and exchange rates, and trade-terms appear to have a far greater impact on employment levels.[122]

2.96Other participants, such as Catholic Religious Australia[123] and Associate Professor Wright argued that a small increase in the cost of a delivered meal was a price worth paying to address the subversion of employment regulation:

The businesses that the Closing Loopholes Bill is seeking to target are not agents of innovation, but rather of employment regulation subversion. A marginal increase in the cost of a meal delivered by a food delivery worker is surely a price worth paying if it helps to seal an increasingly wide hole in the regulatory framework, the effectiveness of which is critical for a dynamic labour market, a competitive economy, and a fair and cohesive society.[124]

2.97In response to concerns about the impact on users of platform services, the department noted that the list of factors the FWC must ‘consider and balance’ when setting minimum standards would include:

impacts on parties that use or rely on services delivered by employee-like workers and platforms; and

the impact on business costs, regulatory burden or sustainability, in addition to existing requirements to consider viability, innovation and productivity.[125]

The care economy

2.98The committee heard conflicting evidence in relation to the operation of gig economy platforms in the care sector. For example, Mable suggested that the bill could lead to less flexibility for workers and clients to reach mutually agreeable terms, create prohibitions on working in certain ways, necessitate an increase platform fees, and reduce client choice and control.[126]

2.99This view was strongly rejected by participants such as the HSU, which described the ‘misinformation being promulgated by some care and support digital labour platforms’ as ‘shameful’ and designed to create fear among care service recipients:

… suggesting that the employee-like provisions of the bill will detrimentally impact the choice and control of people with disability and older people over what services they receive, when, where, from whom and in what form, and that the provisions will somehow lead to them paying more and workers earning less … is unnecessarily and disingenuously aimed at striking fear into some of the most vulnerable Australians.

What is being proposed in the bill is straightforward and limited.[127]

2.100A similar view was expressed by a witness who appeared before the committee in a private capacity to urge the passage of the bill in its entirety:

Despite the catastrophising of some vested interests in this space, what is being proposed in this bill is simple, straightforward and limited in effect. It won’t turn independent contractors into employees, it won’t require care and support participants to become industrial experts, and nor will it prevent them from exercising their choice and control by being able to connect directly with care and support workers. It will simply allow the [FWC] to consider whether some minimum basic protections should be afforded to these essential workers, like minimum rates of pay that allow workers to earn a decent living, put money away for retirement and be valued for their work. I urge the committee to recommend the passing of the bill in full…[128]

2.101In addition—while urging greater consideration of the needs of people with disability as end users of care services—participants such as Ms El Gibbs of the Disability Advocacy Network Australia, strongly supported the introduction of minimum standards and pay rates as drivers of quality, innovation and workforce security.[129] Ms Catherine McAlpine, of Inclusion Australia, elaborated:

We would say that there’s a very strong correlation between the rate of pay and the skills and quality of work that people with an intellectual disability receive. What we see in the gig economy, particularly, is that workers either have no training or that the training responsibilities end up coming to participants and families. For people with an intellectual disability, increasingly that’s left to families. We have problems trying to access support workers via the gig economy who have the skills that we are looking for. Depending on the platform, some people get online training and some people get no training. To have minimum qualifications, minimum standards and minimum rates of pay, would increase the quality of supports.[130]

2.102This point was reinforced by Ms Carolyn Smith of the UWU, who highlighted the importance of continuity of care for older Australians and people with disability and suggested that the precariousness of gig work meant it was ‘not a long-term, attractive industry to work in’, which has a ‘real impact on the quality of care for care recipients’.[131]

2.103However, in relation to pay rates, Mable contended that that support providers using its platform ‘earn more on average’ than service providers employed under comparable award arrangements, while nevertheless acknowledging that the platform does enable workers to earn below the minimum award wage.[132]

2.104Mable’s claim was questioned by other participants. For example, Drs Veen, Goods, Smith and Barratt noted there are conflicting assessments of worker earnings on care platforms. For example, they noted that while the Productivity Commission has found platform workers earn above award rates, other analysis has found that ‘such assessments often fail to take account for the appropriate classification level within a modern award based on the type of care that is provided’.[133]

2.105A similar view was expressed by the HSU, which noted that despite a lack of data on how gig economy workers fare in terms of pay and conditions, ‘what is available indeed suggests that far from workers enjoying the greater flexibility and higher earnings commonly spruiked by the platforms, conditions are in fact being driven down’. As with the evidence provided by Drs Veen, Goods, Smith and Barratt, the HSU also questioned the basis of comparisons between employee and platform worker earnings, describing them as ‘overly simplistic and apt to mislead’.[134]

2.106This was also supported by evidence from Mr Timothy Zafir, Co-Founder of Humdrum, who described how workers were often lured to platform work by ‘seemingly higher hourly rates’ without realising the value of workplace protections:

Unwitting workers are then only discovering the importance of employee-employer relationships when severe issues arise, such as not being paid for work conducted; workers owing a tax debt at the end of the financial year; workers not setting aside super; lack of back-to-work plans and inadequate insurances leading to extended loss of income; increased incidents to all parties due to a lack of orientation, supervision and accountability; severe burnout; and workers leaving the industry due to a lack of support normally provided by a workplace.[135]

2.107Some participants, such as Mable, raised concerns about the potential of the bill to increase the cost of care, including the cost of services provided under the National Disability Insurance Scheme (NDIS).[136]

2.108However, this claim was disputed by other submitters, such as Hireup, which pointed out that the costs of employment and associated entitlements were already built into NDIS pricing, meaning that ‘the government will not need to increase the rates for services’. According to Hireup, the bill would simply mean that ‘the onus will be put on the platforms to ensure workers actually receive them’.[137]

2.109Similarly, Drs Veen, Goods, Smith and Barratt questioned claims about a flow on effect of setting minimum rates of pay and instead argued that the impact of the bill would be to reduce the risk ‘unscrupulous operators’ engaging in ‘a race to the bottom’:

If current earnings are indeed at or above minimum award standards, as per the minimum standards objective (563JX(b)(ii) of the Closing Loopholes Bill, any rates set by the Fair Work Commission as part of minimum standards order will therefore most likely simply act as a safety-net and would not have a direct flow on effect. Importantly, however, having minimum rates will reduce the risk of unscrupulous operators entering the market and engaging in a race to the bottom.

2.110The ASU concurred and highlighted the importance of the employee-like worker reforms to avoiding a race to the bottom and creating a more sustainable and level playing field for NDIS providers and workers:

This would set a minimum industrial safety net and standard for all workers in the sector and give NDIS participants the assurance that they were paying their support workers properly and not inadvertently engaging in wage theft. It would also level the playing field so that all providers can compete on quality—not exploitation of people—when providing services to participants.[138]

Setting minimum standards for the road transport industry

2.111As discussed in Chapter 1, the bill would give the FWC the power to set minimum standards for the road transport industry,[139] which would apply to regulated road transport contractors (contractor drivers) and road transport businesses.[140]

2.112The FWC would have broad discretion to decide what terms and conditions will be set as minimum standards. For example, standards could include terms about payment terms, deductions, working time and insurance.[141]

2.113The impetus for minimum standards being introduced came in part from the Senate Standing Committee on Rural and Regional Affairs and Transport’s report into the Importance of a Viable, Safe, Sustainable and Efficient Road Transport Industry, which was tabled in August 2021.

2.114The report highlighted that transport workers and operators are being increasingly compelled to work harder and faster, and this has created an environment where risk-taking behaviour has become the only competitively viable option in the industry. Evidence throughout the inquiry clearly demonstrated the need for immediate Government intervention to change the operation, practice and, safety culture of an industry that the entire country relies on.[142]

2.115ARTIO emphasised the urgency of protecting working across the industry, regardless of their ‘status’:

To accomplish and safeguard a modern transport economy it essential for protections to be afforded transport workers - regard less of their legal label. Establishing and maintaining enforceable standards and dispute resolution mechanisms will have a proactive effect throughout road transport industry supply chains including, critically, on those with economic influence and power over transport operations. The necessity for such change has become more acute given the relatively sudden emergence of ‘gig’ type arrangements that are exacerbating the dangerous downward spiral of standards and business viability.[143]

2.116Dr Michael Rawling concurred that it is vitally important to have minimum standards in an industry where safety is so intrinsically tied to low and incentivised pay levels, and where so many currently have no protections:

The key reason that the Parliament should enact legislation allowing the FWC to set minimum standards for road transport contractor drivers is extensive evidence of low pay, incentive-based payment methods and (related) poor safety in the road transport industry.

In addition to a large workforce of employee drivers, there is also a considerable work-force of owner drivers who are engaged as contractors and thus currently largely fall outside the employment protections in the Fair Work Act.[144]

2.117Significant players in the road transport industry provided a joint position paper on the bill. ARTIO, the TWU, NatRoad and the NRFA together represent ‘over 575 transport companies, 30 000 owner drivers and small businesses, and 650000 transport workers across Australia’.[145] Their position statement emphasises the importance of the industry to the nation and the economy, and the imperative that the industry remains viable and sustainable.

2.118According to the statement, the current regulation is manifestly inadequate to deal with the current crisis which has seen 347 transport businesses become insolvent in the last financial year, 185 truck-related fatalities, including 44 truck driver deaths, and the rise of gig-transportation models eroding standards and leading a race to the bottom. These combined have led to ‘poor safety outcomes, razor-thin margins, and fragile transport supply chains’.[146]

These elements, subject to actioning the amendments that are listed below, are fundamental to ensuring that these transport reforms can meet the objectives of safety, sustainability and viability. Any changes which undermine these provisions will otherwise threaten the functioning of the entire system and lead to unintended consequences including more deaths and insolvencies.[147]

2.119Safety is a key point further explored by the TWU in its submission and extensive associated documents. The material makes the critical connection between economic pressures and safety in the road transport industry:

The relationship between these economic pressures and safety outcomes in the road transport industry has been proven by an overwhelming body of evidence, collected over decades, involving hundreds of experts, academic studies, coronial inquests and Government inquiries. This research has for example, demonstrated a clear correlation between rates of pay, payment structures and the prevalence of risk-taking practices such as forgoing vehicle and fleet maintenance, speeding, artificial stimulant use, and fatigued driving. Annexure A of this submission contains a non-exhaustive reference list of this evidence citing 138 sources from 1970-2023.[148]

2.120The submission outlines deeply disturbing statistics of recorded deaths in the industry, and the scale of unreported workplace injuries in the less well reported gig transport industry:

Transport workers remain 13 times more likely than any other worker to be killed at work. In the 5 years between 2017-2022, 983 Australians lost their lives in crashes involving either a heavy or light commercial vehicle. Not included in these statistics are those gig transport workers whose deaths in the road transport industry have not been identified or recorded as work-related fatalities. Personal injury among gig transport workers is endemic but hidden by the lack of workplace reporting, with a third of food delivery workers reporting being seriously hurt or injured at work.[149]

2.121The additional material provided by the TWU is an extensive series of reports from academia, coronial inquests and various government inquiries that go back to 1970. All of which demonstrate the link between better pay and conditions for road transport workers and safety on the roads:

A whole series of academic reports, coronial inquests, and government reports that exist in that pile over there demonstrate that, if you pay road transport workers more, there will be fewer road traffic incidents. The coalition government’s own report which it put forward to support the abolition of the RSRT said that, if they had left the order on foot, truck crashes would have reduced by 24 per cent a year, year-on-year. I don’t know what that translates to in people being alive, but I know it translates to people being alive. The same can be said here. Once you start building standards that take the pressure off workers to go hell-for-leather, then they will be safer.[150]

2.122The key mechanism in the bill to deliver minimum standards in the road transport industry will be through the FWC’s Road Transport Advisory Group (RTAG).

2.123The RTAG would be comprised of members or nominees of registered organisations that represent contractor drivers and road transport businesses, to be appointed by the Minister. It would be able to form subcommittees, with members drawn from outside the RTAG to enable it draw on a broad range of expertise and experience.[151]

2.124In addition to the broad support from the road haulage industry, the Australian Public Transport Industrial Association (APTIA), the industrial arm of the Bus Industry Confederation, the peak private bus and coach association for passenger transport, also indicated support for the bill, on the following basis:

The circumstances for passenger transport have changed since the RSRT. When the RSRT came in we argued strongly about safety within our industry. We still argue strongly about safety within our industry, but, regrettably, the number of incidents of recent date have placed the issue of safety well and truly on the books. There are also increased pressures from the gig economy which, as I’m sure you’ve discussed, is a totally deregulated industry, and there are increased costs associated with achieving the greater environment standards needed, leading to an increased need for infrastructure. And there needs to be a reasonable contract period for operators to recover those costs. We think they are all things that could come within the ambit of this new legislation.[152]

Road Safety Remuneration Tribunal – Key differences

2.125Some contributors to the inquiry referenced and compared the Road Safety Remuneration Tribunal (RSRT) as the previous body tasked with improving safety in the industry. The RSRT was introduced in 2012 and abolished in 2016, through what has been described as ‘reasons of political expediency’.[153]

2.126Central to its abolition was its impact on owner drivers through The Contractor Driver Minimum Payments Road Safety Remuneration Order 2016 (the 2016 Order). The 2016 Order set minimum pay rates for owner drivers, entitlements for unpaid time off and had provisions for hirers and supply chain participants to audit supply chain contracts.[154] Many owner drivers protested that having provisions applying only to them made them unable to compete with larger trucking operations.

2.127Mr Mackinlay from the NRFA emphasised was that despite the failure of the RSRT’s 2016 Order, the removal of the tribunal did ‘not remove the need for transport industry reform’.[155]

2.128Some groups opposed to the reforms cautioned that the provisions in this bill could see similar issues to those with the RSRT arising. However, the committee heard repeatedly that there are key differences between the proposed new scheme, and that adopted by the RSRT through the 2016 Order.

2.129The first key difference and protections identified is that the new scheme has been industry driven, and will be administered by, the FWC Expert Panel for the Road Transport Industry, informed by advice from the RTAG and its sub-committees.

2.130The involvement of the industry was welcomed by may submitters to the inquiry. In response to Senator O’Sullivan at the committee hearing in Sydney, Mr Chris Roe from the NRFA described succinctly the difference between the provisions in the bill, and the RSRT:

Senator O’Sullivan: To pick up on your point, Mr Roe, about the acronyms, how are you confident that this isn’t just RSRT spelt ‘RTAG’ or ‘expert advisory’?

Mr Roe: The difference is the industry involvement. With the RSRT, as Gordon was explaining, we had bureaucratic academics deciding how we were going to operate without ever referring to us. This whole process has been industry driven. We’ve been involved in this right from the day dot. People from the industry will be part of the Road Transport Advisory Group, which will then be recommending what standards need to be raised and all the way through. So, rather than being academics that are going to do it, it’ll be industry driven that’ll do it.[156]

2.131The involvement of industry was also highlighted as the key issue by MrMackinlay of the NRFA who, by his own admission, ‘led a campaign to have the RSRT legislation repealed’:

The RSRT had so much potential but was poorly managed by a team of people with no experience in, no knowledge of and no respect for the industry.[157]

2.132Ms Michelle Harwood from the Tasmanian Transport Association agreed that the only way to ensure that the best possible policies are adopted is with a broad and collaborative process involving all players in the industry, and for that processes to allow meaningful engagement and time to assess the consequences of reform:

We understand that the order through the RSRT was not ideal in any way. That’s why we’ve been very keen, with the amendments in this particular bill, that there are safeguards and mechanisms to test the consequences on all parties in the road transport industry. That’s why we’re pleased that there’s the expert panel, first off, then the Road Transport Advisory Group and then that consultation.[158]

2.133A distinguishing feature of the proposed legislation is that unlike the RSRT there would be a 12-month consultation period on a draft order, followed by another 12-month period if the draft order is changed. According to Mr Paul Ryan, Chair of TEACHO, this will provide the opportunity for ‘anybody and everybody affected has the opportunity to feed in their views on that particular draft order’.[159]

2.134One of the faults identified with the 2016 Order was that it only applied a single group, in that case, owner drivers. However, under the new proposed scheme the FWC will have the power to make regulations about contractual chains. According to the department these are:

… intended to ensure that owner drivers are not disadvantaged compared to other forms of engagement by providing for the making of minimum standards orders applying to road transport contractual chains and for an appropriate ‘failsafe’ mechanism to allow concerns of that nature to be raised and addressed.[160]

2.135This aspect of the bill was supported across the transport industry. FBTTranswest, a large transport and logistics company that operates nationally and internationally, supported the bill saying it would provide:

… the opportunity here to be able to enact a chain of responsibility. This bill will give us a mechanism to actually hold the person at the top of the supply chain, the economic decision-maker, to account.[161]

2.136Emeritus Professor Peetz, a research fellow from the CfW, provided commentary on Part 16 of the bill, and supported its objective of addressing issues throughout the supply chain, and not just between the contracting entity and the contractor:

… often, a lot of the important decisions are made higher up the supply chain. That’s really something that I think part 16 in this bill has worked from, in that you’ve got to have the capacity to look at the whole contractual chain and not just at an individual relationship between the contractor and the person making the contract…[162]

2.137The ACTU also highlighted the need for minimum standards to apply to all those involved in the road transport supply chain:

The reality of the modern transport economy is that protections must exist for all transport workers - regardless of their legal label – through the establishment and maintenance of enforceable standards and dispute resolution mechanisms having proactive effect throughout road transport industry supply chains including, critically, on those with economic influence and power over transport operations. The necessity for such change has become more acute given the relatively sudden emergence of ‘gig’ type arrangements that are exacerbating the deadly downward spiral of standards and business viability.[163]

Enhancing delegates rights for regulated workers

2.138While delegates rights were substantially enhanced in the passing of the original bill, this bill extends those rights to regulated workers.

2.139Workplace delegates are employees—appointed in accordance with the rules of an employee organisation—to represent the members of that organisation in the workplace.[164] As noted by the Mining and Energy Union (MEU), workplace delegates are not full-time union officials. Rather, they are employees who volunteer to:

negotiate pay and conditions as part of enterprise agreements;

consult with management about workplace changes/issues of concern to employees;

support, assist and represent employees experiences issues at work, such as underpayment, dismissal, injury, bullying and harassment; and

liaise with union members in the workplace and union officials.[165]

2.140The bill would implement one of the outcomes from the September 2022 Jobs and Skills Summit, namely, improving employee access to representation for workplace safety and compliance issues by ‘providing workplace delegates with specific protections, and rights to communicate with their fellow workers’.[166]

2.141While some employers’ enterprise agreements already provide rights for workplace delegates, the proposed changes would introduce specific rights and protections, including:

general protection from employers unreasonably refusing to deal with delegates, misleading them, or hindering/obstructing the exercise of their rights;

specific rights to represent industrial interests of members (and potential members) and to represent union members (and potential members) in disputes with employers;

entitlement to reasonable communication with members about industrial matters; and

reasonable access to the workplace/workplace facilities and reasonable access to paid time for delegate training (for the purposes of representing members’ industrial interests).[167]

2.142These changes were supported by a range of participants, including the MEU, who said that:

It is also likely that a workplace delegate who has received proper training –in negotiation, dispute resolution and the like–is likely to result in better outcomes for both the employees and the employer.…[168]

2.143The ACTU illustrated the value of enshrining and enhancing delegates’ rights through a case study of a ‘Pepe’ who is a crane operator in NSW and a Union delegate. Pepe described her role as being one which advocates for those who aren’t able to advocate for themselves:

Our dispute process is something our workers need help with often. In our industry we have many…female migrants [and] lower paid demographics who do not have the confidence to speak up. Delegates give them the confidence once they’ve seen us do our thing.[169]

2.144The Australian Education Union (AEU) submitted that the changes in the Bill would ‘articulate and protect key minimum functions of delegates’ roles, while providing scope for further articulation of delegates’ roles, duties, functions and rights…’[170]

2.145Also in the education sector, the Independent Education Union of Australia (IEU) explained that the proposed measures are sensible provisions than enshrine rights for delegates to:

Access training at the employer’s expense to enable them to meet their responsibilities including their legislative obligations;

Speak to their workmates where they work, while they’re at work, about their work;

Reasonable use of employer facilities to enable them to fulfil their duties as delegates more efficiently;

Be given a fair go by their employer in performing their duties as a delegate.[171]

2.146The CfW reflected on the failure of legislation to keep pace with the shift from a largely award-based system in the pre-1990s to one featuring more workplace-based determination of pay and conditions via enterprise agreements. According to the CfW, this failure has had consequences in terms of poor wages growth for Australian workers, with the ‘erosion of workers’ rights’ described as ‘the most consequential, and actionable, factor behind the stagnation of wages in Australia’.[172]

2.147The CfW also argued that the shift has meant that unpaid delegates are now the primary means of advancing employee interests via enterprise bargaining. Accordingly, the CfW supported the proposed changes and noted the importance of empowering delegates to ‘play their full potential role in enforcing labour standards and ensuring fair compensation and treatment of workers’.[173]

2.148However, the measures were opposed by other participants, such as Lynas Rare Earths and Clubs Australia who raised concerns about the operation of the provisions, including the absence of limits around:

the number of workplace delegates per employer;

paid training time (beyond what is considered ‘reasonable’).[174]

2.149In relation to the number of workplace delegates per employer, the department’s supplementary submission argues that there is no significant incentive in the bill that would cause the number of delegates to increase significantly:

The department notes that providing support and protection to individuals fulfilling the role of workplace delegate is unlikely to create an incentive for significant numbers of workers to become delegates. As noted above, the rights and protections that would be provided to workplace delegates under this Bill would only apply when employees are acting in their capacity as a workplace delegate. Additionally, workplace delegates can only be appointed or elected in accordance with the rules of a registered union.[175]

2.150In terms of paid training, the Department responded to concerns that the scope of paid training was too broad by pointing out that there was an obligation on the FWC to vary the training depending on the industry, and that parties would be allowed to provide submissions in that process; and that parameters of delegates’ rights can also be negotiated through enterprise agreements.[176]

Committee view

2.151The Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 aims to close loopholes that undermine pay and conditions and to improve work health and safety laws in the Commonwealth jurisdiction. Put simply, every Australian worker should have access to fair pay and working conditions, and many good employers support that.

2.152This committee has been travelling across the country, holding an unprecedented number of hearings to hear from businesses, employee groups, unions and, importantly, workers themselves. From Melbourne to Perth and Sydney to Launceston, the message was that the current system isn’t working. It doesn’t protect workers’ pay and conditions. It doesn’t protect good businesses who are being undercut by bad businesses. Unions and workers told the committee that the people who are risking their lives making deliveries or undertaking unsafe work can’t make ends meet. The committee heard about workers being ripped off by bad businesses. It heard about unfair labour practices where Qantas could have four flight crew operating the same flight and doing the same job but being paid vastly different rates of pay, each employed by 1 of 17 different cabin crew entities.

2.153As set out in the body of the report, there was overwhelming support for the bill from employee organisations, academics, civil society groups, religious organisations, and other groups.

2.154There was also broad support from road transport employer and employer groups for the road transport provisions, and from numerous gig platforms for the provisions relating to gig workers. A number of employer groups, including the Australian Hotels Association and Pharmacy Guild of Australia, also expressed support for the reforms to casual employment.

2.155Many businesses and business groups recognise that returning balance and fairness to our industrial relations system is not an attack on businesses at large. In fact, as many submitters to this inquiry have noted, closing these loopholes and stopping the race to the bottom on wages and working conditions will benefit the majority of employers who seek to compete on innovation and productivity. Many have engaged with the inquiry in good faith and secured amendments which clarify and strengthen the bill’s provisions.

2.156A minority of employers and employer groups have instead opted to oppose any suggestion that these loopholes should be closed. Now is not the time is what the committee heard from the Minerals Council of Australia (MCA), while big profits and exorbitant executive bonuses are rampant. Groups such as the MCA do not offer any alternative ideas or solutions for how Australia’s long stagnant wages growth and rising job insecurity can be dealt with, because they profit from these very issues.

2.157Some business groups and businesses raised broad concerns about the perceived complexity of the legislation, and it being a handbrake on productivity.

2.158However, others made the point that the loopholes themselves are complex. For example, DrEugene Schofield-Georgeson pointed out that certain provisions, such as the definition of casual employment, were necessarily detailed. Other witnesses, such as Emeritus Professor David Peetz questioned claims that the bill was too complex particularly as ‘the bottom line for businesses that are trying to implement these provisions is really going to be what’s coming out of the Fair Work Commission determination’ and the Fair Work Commission ‘is not going to try and make things any more complex than they need to be’.

2.159In response to accusations that the bill will hinder productivity, participants noted that the loopholes the bill aims to close are themselves a handbrake on productivity and innovation. For example, according to the Centre for Future Work, the expansion of insecure employment models has worked to undermine productivity, as well as fairness, living standards and accountability.

2.160In a concise summary of the evidence presented by opponents of the bill, Associate Professor Chris F. Wright noted the ‘opportunistic and contradictory’ nature of the arguments put forward…describing much of the criticism as ‘misleading, self-serving and evidence-free’.

2.161It is worth remembering the very same big business groups warning of dire outcomes from this bill, made similarly dramatic statements about what would happen if the Fair Work Amendment (Secure Jobs, Better Pay) Bill passed the Parliament, which it did 14 months ago in December 2022.

Standing up for casual workers

2.162Australia has one of the highest rates of casual employment in the OECD. Many casual workers prefer to work as a casual for the flexibility this mode of engagement provides, and critically, this bill protects the ability for casuals to remain casuals if that is their preference.

2.163But equally, it is clear that there is a large and growing cohort of casual employees working in practice as permanent part-time or full-time employees, who desire the benefits of permanent employment, who have been failed by the loopholes in the current workplace laws, particularly the definition of casual employee, and casual conversion laws, introduced by the Morrison Government. This bill remedies the loopholes in these two provisions.

2.164The main criticisms levied by business groups opposed to the closing of these permanent casual loopholes were that the new definition proposed in the bill is too complex, and that the new definition creates uncertainty around whether a casual with a regular pattern of work could still be a casual.

2.165As was acknowledged by a number of submitters, including most succinctly in Professor Andrew Stewart’s submission, the proposed changes to the definition of a casual employee in effect restores the position that existed for many years prior to the Morrison Government’s IR Omnibus Bill in February 2021, and the subsequent High Court decision in Rossato, albeit with added protections for employers.

2.166The submission of Professor Sean Cooney also points out that in most comparable jurisdictions–including the United Kingdom, Canada, New Zealand, California and Germany–that the true nature of an employment relationship is a relevant factor, not just what is written in the contract. So, what some employer groups now decry as too complex, is in fact a long-established legal principle both in Australia and around the world.

2.167As for the purported issue of uncertainty about casuals working regular patterns of work, the agreement reached with the Australian Hotels Association has dealt with this matter through an amendment which has already been introduced in the House of Representatives, which makes it explicit in the bill that a regular pattern of work does not of itself indicate a firm advance commitment to continuing and indefinite work.

2.168As the Australian Hotels Association itself said, the amendments ‘strike the right balance’ and ‘provide much more certainty and fairness for workers and employers and can be chalked up as a win for both’. And as the Pharmacy Guild added, ‘the amendment will now give employers greater certainty when it comes to employing casuals on a regular basis’.

Setting minimum standards for workers in the gig economy

2.169There have been at least 15 deaths in gig work in food delivery and rideshare since 2017. The committee heard from delivery workers who are working 14-hour days just to make ends meet and earning as little as $6 an hour, with no workers compensation and no leave entitlements.

2.170The predominantly positive way in which Uber, Menulog and DoorDash have engaged with these proposed reforms has resulted in further amendments which Uber referred to at the committee’s public hearing on 10 November 2023 as ‘offer[ing] a positive step towards achieving sensible reforms with fit-for-purpose minimum standards’.

2.171In contrast to the constructive approach taken by the three major delivery platforms, care sector gig platform Mable called in its submission for it to be excluded from the scope of the bill, or as a backup solution, for the Parliament to directly legislate the minimum standards that Mable workers receive. Mable’s spurious arguments for why it should be specially carved out of the reforms are covered in the following paragraphs.

2.172Mable states in its submission that the proposed reforms ‘introduce unnecessary uncertainty, complexity and cost’. Specifically, Mable says that complying with the Social, Community, Home Care and Disability Services (SCHADS) and Nurses Awards would be ‘unworkably complex’.

2.173It should first be noted that the bill does not impose any obligation upon a gig platform to be bound by an Award. Even setting that aside, this is an extraordinary argument when thousands of care providers around Australia already comply with these Awards, including other care sector gig platforms that appeared at this inquiry, such as Hireup and Humdrum.

2.174As was canvassed at Mable’s appearance at a public hearing on 10 October 2023, Mable has received significant investment by global private equity funds, making it one of, if not the best resourced care provider in the NDIS. Additionally, Mable’s submission repeatedly spruiks how the platform will ‘lead the innovation in support needed for the long-term effectiveness and sustainability of the NDIS’. It’s shocking that such a well-resourced and highly innovative business is apparently incapable of complying with the same basic workplace relations framework that even small not-for-profit providers have complied with for decades.

2.175Another gig platform–Sidekicker–told the committee at that same public hearing that they already manage to comply with 17 different awards, and also pay in line with a number of EBAs when supplying staff at EBA-covered sites, making a mockery of Mable’s argument that paying in line with two awards would be too challenging.

2.176Mable’s second justification for its exclusion from the reforms is that its workers already ‘earn more on average than individuals working under comparable award arrangements’.

2.177Whether this is true is a point of significant contention, and is not the focus of this inquiry, however it does pose the question of why Mable is so fiercely opposed to being required to provide rates of pay and conditions it insists it is already providing and exceeding.

2.178While Mable was opposed to the bill–the two other platforms operating in the NDIS, Hireup and Humdrum, told the Committee they support the bill and the concept of building ‘sustainable workplaces, not unregulated marketplaces’.

2.179This view was shared by the Mable workers that directly provided evidence to the inquiry, who raised concerns about frequent unpaid work, unsafe work practices, legal liability where a client is injured, the lack of workers compensation, and a race to the bottom on rates of pay regardless of experience or qualifications.

2.180When these concerns were put to Mable at the public hearing, Mable’s riposte was that ‘maybe the answer is that small business isn’t for them’.

2.181The concerns put forward by Mable’s workers and the other platforms operating in the NDIS have been echoed by a diverse range of stakeholders, ranging from the Aged Care Royal Commission, to the submissions of traditional care providers like the Uniting Church and Catholic Social Services Australia, to the evidence provided to the inquiry by advocates Disability Advocacy Network Australia.

2.182It is clear that for the sake of care workers and care recipients alike, minimum standards are necessary. Mable’s contention that it is incapable of complying with minimum standards orders is not credible.

Road transport

2.183Evidence to this, and other committees, highlighted that the viability of the sector is severely in danger if transport workers and operators are being increasingly compelled to work harder and faster, and where risk-taking behaviour becomes necessary just to stay afloat.

2.184In 2022 alone, there were 185 truck-related fatalities on Australian roads, including 44 truck drivers. There were also 347 insolvencies in the road transport industry. Road transport is the deadliest industry in Australia, and as demonstrated by decades of academic research here and around the world, commercial pressures have a direct impact on the industry’s horrific safety record.

2.185When the Road Safety Remuneration Tribunal (RSRT) was abolished by the Turnbull Government in 2016, with no alternate framework for minimum standards put in its place, a ticking time bomb was set in trucks and transport businesses across Australia. This is almost universally acknowledged across the industry today, including by the very industry groups that campaigned for the RSRT’s abolition, but which now support the reforms in this bill.

2.186As set out above, the position paper from the Australian Road Transport Industrial Organisation (ARTIO), the Transport Workers’ Union (TWU), the National Road Transport Association (NatRoad) and the National Road Freighters Association (NRFA), who together represent over 575 transport companies, 30 000 owner drivers and small businesses, and 650 000 transport workers across Australia clearly demonstrates the need for immediate Government intervention to change the operation, practice and, safety culture of an industry that the entire country relies on. This bill brings that.

2.187The only substantial opposition to these reforms throughout this inquiry has come from large employer groups–the likes of the MCA and the Business Council of Australia–who do not represent the drivers and businesses in the road transport industry, but instead represent the most powerful and profitable clients in Australia, who directly profit from squeezing those in their supply chains.

2.188The committee recommends that the bill be passed, subject to the amendments that follow.

The right to disconnect

2.189There was broad agreement amongst contributors to the committee’s inquiry that one aspect of work life balance that needs to be protected in the modern industrial context is the right to disconnect from our workplaces outside regulated hours. The intensification of workloads in sectors such as teaching or policing is frequently cited as a contributory factor in staff recruitment and retention.

2.190The Independent Education Union of Australia (IEU) explained to the committee that there is increasing pressure on teachers to be accessible to pupils and parents outside of regular school hours:

…the technological shift over the last 10 or so years has made teachers increasingly accessible to parents. Digital apps can literally create connection between parents and teachers 24/7, and there’s the expectation that parents can say: ‘I know you’ve seen my message. I know you saw it then, and you haven’t responded until this point in time’. That can create a stress which is unnecessary. Definitely, the right to disconnect would be one avenue to be able to resolve problems like that.[177]

2.191The Police Federation of Australia also highlighted that the pressures placed on their members in their roles is so intense that the right to disconnect, or disengage is absolutely essential:

The right to disconnect is so intense. Not only do the police see that trauma, deal with the families’ trauma, deal with their colleagues’ trauma, have to investigate, have to go to court, and get media attention but they also have to go home and deal with their families

…the right to disconnect gives those officers that little bit of breathing space.[178]

2.192Teachers representatives pointed out that there are real advantages in ensuring that teachers are not driven to the point of exhaustion:

There are health and wellbeing benefits, but there are also benefits in terms of productivity and teaching and learning outcomes, because the more we exhaust teachers to no good purpose, the more we impact teaching and learning outcomes in schools.[179]

2.193The AFP representatives told the committee that these rights are already contained in some enterprise agreements, in some jurisdictions, but that harmonisation across the country would be greatly welcomed:

We’d welcome that harmonised deal across the Commonwealth in regard to the right to disconnect. Anything that’s universal is very good as a base. Some of the jurisdictions have dealt with that legislation, and some deal with it in another way.[180]

2.194The ACTU was also supportive of amending the bill to address the expectation to work outside regulated hours:

…in principle we support the need to amend the bill to address this issue. We have seen that the world of work changes so rapidly, and it is the case that many workers are in situations where they’re not able to ever stop work. This should be addressed. We would want to look at the detail of any amendment, but in terms of the problem you’ve outlined we agree that it is something that should be fixed, and could be fixed, in this bill.[181]

2.195The committee recommends that an amendment be made to the bill to legislate a ‘right to disconnect’ in the Fair Work Act, supporting the development of clear expectations about contact and availability in workplaces. Modern Awards and enterprise agreements should incorporate a compliant right to disconnect term, and the FWC should be empowered to make ‘stop orders’ if a dispute cannot be resolved at the workplace level.

2.196Throughout the development of the bill, and continuing into the process of this inquiry, the Government has engaged in good faith with employers and employer groups, including gig platforms, on how the bill can be strengthened and improved. Through this process, the gig platforms have raised concerns about the interaction of minimum standards orders with state laws, systems and standards. To resolve this issue, the Government should consider amendments which would ensure that parties are not subject to duplicative and overlapping regulation between the Commonwealth, and State and Territory jurisdictions.

2.197Similarly, issues have been raised by platforms regarding the potential for workers to take multiple actions with respect to the same conduct or circumstances, for example, under the unfair deactivation provisions, and also under the unfair termination provisions. There are already restrictions in Part 6-1 of the Fair Work Act on multiple actions, and similar restrictions should be introduced with respect to the actionable rights created in Part 16 of the bill.

2.198The committee recommends that Government considers amendments to ensure that parties are not subject to duplicative and overlapping regulation between the Commonwealth, and State and Territory jurisdictions.

2.199The committee recommends that the bill be amended to insert restrictions on multiple actions being taken by employee-like and road transport workers with respect to the same conduct or circumstances.

2.200The joint position statement put forward to this inquiry by ARTIO, the TWU, NatRoad and the NRFA called for a few amendments to the proposed reforms. Principally, it raised concerns about a ‘lack of enforceability’ with respect to s40J regulations about the road transport industry contractual chain, and instead called for the contractual chain ‘powers and functions of the FWC [to be] enshrined in legislation’, based on principles set out in the statement.

2.201The joint statement further called for relevant references to the contractual chain to be added to other appropriate sections of the provisions, including the s40C guide, and provisions directing the road transport objective, road transport advisory group, and road transport expert panel.

2.202This amendment, broadly supported across the road transport industry, will ensure that accountability for fair, safe and sustainable standards throughout the contractual chain is fairly distributed to each participant in that chain, rather than the burden being unfairly pushed down to individual drivers and operators.

2.203The joint statement also expresses concern about the current requirement in s536JF for a road transport minimum standards order to not come into operation until 24 months after the relevant notice of intent for the order was published. The joint position of ARTIO, the TWU, NatRoad and the NRFA is that there are already numerous steps and safeguards that have been met before this period begins, and that a 12-month period would be sufficient. Given the urgent need for minimum standards in the industry, and the extensive safeguards in the bill this is a sensible approach.

2.204The Government has been clear from the outset that in empowering the Fair Work Commission to set minimum standards for the road transport industry, it is critical to heed the lessons learned from the Road Safety Remuneration Tribunal and the RSRT’s 2016 Order. The key to achieving this objective has been ensuring that these reforms are industry-led at every stage of the process. As an added safeguard, the committee agrees with industry that the Minister, or the FWC on application, should be empowered to defer or suspend a minimum standards order while the FWC conducts a review to decide whether to vary or revoke its terms. This safeguard should also be applied to employee-like minimum standards orders.

2.205Finally, at the inquiry’s final public hearing on 22 January 2024, a question was raised about whether there should be a requirement for owner driver representation on a road transport advisory group subcommittee when there is a proposed road transport minimum standards order that will cover owner drivers. While noting that it is already likely that the road transport advisory group and its subcommittees will have representation from owner drivers and/or their representatives, the committee sees merit in making this an explicit requirement.

2.206The committee recommends that amendments be made to the bill to empower the FWC to make orders in relation to contractual chains in the road transport industry, and consequential amendments required to give effect to the principle of contractual chain accountability.

2.207The committee recommends that an amendment be made to s536JF, reducing the 24 months’ notice period for a road transport minimum standards order to 12 months.

2.208The committee recommends that a new failsafe mechanism be introduced, by which the Minister, or the FWC on application, may defer or suspend all or part of a road transport or employee-like minimum standards order, while the FWC conducts a review to consider whether to vary or revoke its terms.

2.209The committee recommends the Government examines the merits of a proposal to amend the bill to require owner drivers, or representatives of owner drivers, to be included on a road transport advisory group subcommittee when minimum standards orders covering owner drivers are being considered.

2.210Throughout the course of this inquiry, the committee heard from casual employees who said the inherent insecurity of their jobs, and the threat of their contracts being terminated at any point, meant that they were dissuaded from voicing concerns or exercising workplace rights. For this reason, it is essential that the new workplace rights granted to casual employees by this bill are covered by the general protections provisions of the Fair Work Act

2.211Additionally, the Community & Public Sector Union – Public Sector Union Group (CPSU – PSU Group) raised a concern in its submission about whether the drafting of the casual conversion process would allow public sector employers to use merit selection processes to avoid casual conversions. This matter was also discussed at the inquiry’s public hearing on 10 November 2023.

2.212As the CPSU – PSU Group acknowledged in its submission, the merit principle ‘is an important element of a fair and transparent public service that is open to all Australians and should not be undermined’. But equally, as the CPSU – PSU Group also states, it is important that public sector employees do not face barriers to conversion that are contrary to the bill’s intentions to address insecure employment. The committee believes the interactions between the Public Service Act 1999, the Australian Public Service Commissioner’s Directions 2022, and the Fair Work Act 2009 including the casual conversion reforms proposed in this bill, are examined to align these two priorities.

2.213The committee recommends that an amendment be made to the bill to clarify that the casual employees’ rights created by this bill are workplace rights for the purpose of the general protections provisions.

2.214The committee recommends that the interactions between the Public Service Act 1999 and Australian Public Service Commissioner’s Directions 2022 and Fair Work Act 2009 are examined to ensure that casual employees in the Australian Public Service have equitable access to the bill’s casual conversion provisions, while upholding the integrity of the APS merit principle.

2.215The commencement dates within the bill were set based upon a preferred timeline where the bill was passed in its entirety before the end of 2023. As a result of the delay of this committee’s reporting date to 1 February 2024, and in order to give the Fair Work Commission sufficient time to prepare, some commencement dates within the bill should be changed from 1 July 2024, to the date 6 months after Royal Assent. Specifically–the reporting dates for Part 15 (Definition of employment) and Part 16 (Provisions relating to regulated workers).

2.216The committee recommends that an amendment be made to the bill to change the commencement dates for Part 15, and Part 16, from 1 July 2024, to 6 months after Royal Assent.

Footnotes

[1]The Hon Tony Burke MP, Minister for Employment and Workplace Relations, Second Reading Speech, Proof House of Representatives Hansard, 4 September 2023, p. 63.

[2]The Hon Tony Burke MP, Minister for Employment and Workplace Relations, Second Reading Speech, Proof House of Representatives Hansard, 4 September 2023, p. 63.

[3]Transport Workers’ Union (TWU), Supplementary Submission 37.1, p. 2.

[4]Explanatory Memorandum, Annexures to Certification Letter OBPR22-02409: Closing the labour hire loophole, p. 5.

[5]Associate Professor Chris F. Wright, private capacity, Proof Committee Hansard, 10 October 2023, p.2. See also, Australian Council of Trade Unions (ACTU), Submission 110, p. 4.

[6]The Hon Tony Burke MP, Minister for Employment and Workplace Relations, ‘Speech – National Press Club, Closing the Loopholes Bill’, 31 August 2023.

[7]The Hon Tony Burke MP, Minister for Employment and Workplace Relations, Second Reading Speech, Proof House of Representatives Hansard, 4 September 2023, p. 63.

[8]St Vincent de Paul Society, Submission 121, p. 2; Migrant Workers Centre, Submission 67, p. 1; Federation of Ethnic Communities’ Councils of Australia, Submission 124, p. 3. See also, ACTU, Submission 110, pp. 40 and 43, Department of Employment and Workplace Relations (DEWR), Submission 42, p. 5.

[9]TWU, Submission 37, p. 5. This evidence includes but is not limited to: House of Representatives Standing Committee on Communications, Transport and the Arts, Beyond the Midnight Oil: An inquiry into managing fatigue in transport (2000); US Department of Transportation, Paying for Safety: An Economic Analysis of the Effect of Compensation on Truck Driver Safety (2002); Claire Mayhew and Michael Quinlan, ‘Economic pressure, multi-tiered subcontracting and occupational health and safety in Australian long-haul trucking’, Employee Relations Journal 28(3) (2006); Remuneration and Safety in the Australian Heavy Vehicle Industry: A review undertaken for the National Transport Commission (2008); WL Soro et al., ‘An examination of the relationship between financial performance and safety factors in the heavy trucking industry’, Safety Journal 164 (2023); Motor Accidents Authority of New South Wales, Report of Inquiry into Safety in the Long-Haul Trucking Industry (2001); Safe Work Australia, Supply Chains and Networks (2011); The National Transport Commission, Safe Payments addressing the underlying causes of unsafe practices in the road transport industry (2008); Daniel A. Rodriguez et al., ‘Effects of Truck Driver Wages and Working Conditions on Highway Safety: Case Study’, National Academies: Transportation Research Record1833: 1 (2003).

[10]Dr Michael Rawling, Senior Lecturer, Faculty of Law, University of Technology Sydney (UTS), Proof Committee Hansard, 3 October 2023, p. 28 and TWU, Submission 37, p. 5.

[11]TWU, Submission 37, pp. 6 and 8.

[12]The Hon Tony Burke MP, Minister for Employment and Workplace Relations, ‘Closing loopholes so workers don’t have to choose between their safety and their pay’, 19 October 2023.

[13]Dr Michael Rawling, Senior Lecturer, Faculty of Law, University of Technology Sydney (UTS), Proof Committee Hansard, 3 October 2023, p. 29 and TWU, Submission 37, p. 13.

[14]Associate Professor Chris F. Wright, Submission 21, p. 11.

[15]See, for example, Australian Federal Police Association (AFPA), Submission 3, pp. 4 and7; Community and Public Sector Union (CPSU) – State Public Services Federation Group, Submission 118, [pp. 6 and 7]; CPSU – PSU Group, Submission 119, pp. 13–14; Unions WA, Submission 7, p.6. Queensland Council of Unions, Submission 166, pp. 1–2; Shop, Distributive and Allied Employees’ Association (SDA), Submission 26, p. 4; Working Women’s Centre South Australia (WWC SA), Submission 105, pp. 1–2; Australian Federal Police, Submission 129, p. 1; Australian Retailers Association (ARA), Submission 29, p.1; National Retail Association (NRA), Submission 45, pp. 3–4; Pharmacy Guild of Australia (PGA), Submission 27, p.7; National Farmers Federation (NFF), Submission 18, pp. 7–8; Australian Restructuring Insolvency & Turnaround Association, Submission55, p. 1; Master Builders Association (MBA), Submission 19, p. 3; Civil Contractors Federation Australia; Submission120, [p.1]. These submitters indicated support—either in principle or in full—for one, some, or all of the listed provisions.

[16]National Road Freighters Association (NRFA), Submission 6, Attachment 1 (Road Transport Industry Position Statement: Closing Loopholes Road Transport Reforms), p. 2. The Australian Road Transport Industrial Organisation (ARTIO), the TWU, the National Road Transport Association (NatRoad), and the NRFA are the peak representative bodies for transport employers, businesses and workers. Together, they represent over 575 transport companies, 30 000 owner drivers and small businesses, and 650 000 transport workers across Australia.

[17]NRFA, Submission 6, [p. 9].

[18]Centre for Future Work (CfW), Submission 108, p. 12; St Vincent de Paul Society, Submission 121, pp.3–4; WWC SA, Submission 105, pp. 1–2.

[19]AFPA, Submission 3, p. 8; Hireup, Submission 24, pp. 6 and 7; PerCapita, Submission 101, p. 15; Catholic Social Services Australia, Submission 117, p. 1. See also, DrMichael Rawling, Submission 1, p. 1; Mr Glyn Castanelli, Submission 149, [p. 2]; Australian & International Pilots’ Association, Submission 153, p. 1; Uniting Church in Australia – Synod of Victoria and Tasmania, Submission 157, p. 2; Associate Professor Chris F. Wright, Submission 21, p.11; McKell Institute, Submission 89, [p.1].

[20]Australian Services Union (ASU), Submission 33, p. 3.

[21]Australia Trucking Association (ATA), Submission 4, [p. 1]; ACTU, Submission 110, p. 6; Flight Attendants’ Association of Australia (FAAA), Submission 36, p. 3; Australian Workers’ Union (AWU); Submission 9, p. 3; Electrical Trades Union (ETU), Submission 61, [p. 3]; Finance Sector Union (FSU), Submission 63, p. 3; Professionals Australia, Submission 66, p. 3. See also, Mining and Energy Union (MEU), Submission 8, p. 8; CFMEU (Construction and General Division), Submission 22, p. 1; Unions WA, Submission 7, p. 1; ARTIO, Submission 2, p. 7; CPSU – PSU Group, Submission 119, p. 1, Mr Mark Reynolds, Submission 142, [p. 2]; Professor Andrew Stewart, Submission 158, p.5; Associate Professor Alysia Blackham, Submission 145, p. 2; Australian Nursing and Midwifery Federation, Submission 25, p. 4; Health Services Union (HSU), Submission 32, pp. 3 and 5; TWU, Submission 37, p. 4; Australian Education Union (AEU), Submission 113, p. 1.

[22]Rideshare Driver Network, Submission 143, p. 9.

[23]TWU, Supplementary Submission 37.1, p. 2.

[24]See, for example, AEU, Submission 113, pp. 1; Victorian Trades Hall Council, Submission 62, p. 2; ETU, Submission 61, [pp. 5 and 9]; HSU, Submission 32, p. 25; UWU, Submission 17, p. 3; Queensland Council of Unions, Submission 166, p. 1; Per Capita, Submission 101, p. 2; WWC SA, Submission 105, pp. 2, 4, 8, 9, 10 and 11; CfW, Submission 108, pp. 4, 5, 6, 9 and12; McKell Institute, Submission 89, [p. 1]; Uniting Church in Australia – Synod of Victoria and Tasmania, Submission 157, pp. 2, 6 and9.

[25]See, for example, Ms Tania Constable, Chief Executive Officer (CEO), Minerals Council of Australia (MCA), Proof Committee Hansard, 3 October 2023, p. 79; Maritime Industry Australia Limited, Submission 110, pp.12, 15 and 16; South Australian Wine Industry Association Incorporated, Submission 102, [p.4]; Global Medics and Medacs Healthcare, Submission 103, [p. 1]; Rio Tinto, Submission 115, p. 2; Lynas, Submission 10, [pp. 3, 4, 6 and 10]; AREEA, Submission 128, pp. 3, 4 and 5, Newmont, Submission 133, [pp. 1 and 2].

[26]Dr Eugene Schofield-Georgeson, Submission 144, pp. 5 and 6.

[27]Emeritus Professor David Peetz, private capacity, Proof Committee Hansard, 3 October 2023, p. 5.

[28]Associate Professor Chris F. Wright, Submission 21, p. 8.

[29]ACTU, Submission 110, p. 41.

[30]Professionals Australia, Submission 66, p. 4.

[31]See, for example, Civil Contractors Federation Australia, Submission 120, [pp. 7, 11 and 12]; AREEA, Submission 128, p. 3; DP World, Submission 137, [pp. 1 and 6]; ACCI, Submission 130, p. 7; Rio Tinto, Submission 115, p. 1; Lynas, Submission 10, pp. 5, 6 and 7.

[32]Rio Tinto, Submission 115, p. 1 and Civil Contractors Federation Australia, Submission 120, [p. 11].

[33]DEWR, Submission 42, p. 5.

[34]CfW, Submission 108, p. 12.

[35]Associate Professor Chris F. Wright, private capacity, Proof Committee Hansard, 10 October 2023, p.2. According to Associate Professor Wright, the research indicates that these arrangements, underpinned by collective bargaining, provide benefits to both workers and employers. Workers gain job and economic security and opportunities to progress their careers. Employers gain loyal and satisfied workers who contribute to productivity and innovation. Collective bargaining provides the basis for high-productivity business models which help to make the Australian economy internationally competitive.

[36]Emeritus Professor David Peetz, private capacity, Proof Committee Hansard, 3 October 2023, pp.3and 4.

[37]ACTU, Submission 110, p. 4. See also, Unions WA, Submission 7, p. 1.

[38]Ms Michele O’Neil, President, ACTU, Proof Committee Hansard, 10November 2023, p. 23.

[39]ATA, Submission 4, [p. 3]; Clubs Australia, Submission 135, p. 1; Menulog, Submission 136, p. 1; National Retail Association, Submission 45, p. 2. See also, Australian Constructors Association, Submission 88, p. 1; AFPA, Submission 3, p. 2; Uniting Church – Synod of Victoria and Tasmania, Submission 157, p. 2; TWU, Submission 37, p. 17; Ms Michelle Harwood, Executive Director, Tasmanian Transport Association, Proof Committee Hansard, 11 October 2023, p. 44.

[40]See, for example, Ai Group, Submission 31, p. 4; Housing Industry Association, Submission 71, p. 2; ARA, Submission 29, p. 2; AFPA, Submission 3, p. 7; Ms Michelle Harwood, Executive Director, Tasmanian Transport Association, ProofCommittee Hansard, 11 October 2023, p. 44.

[41]Explanatory Memorandum, p. 5.

[42]See Chapter 1 of this report, as well as Explanatory Memorandum, pp. 58–66, 61, and 66–70.

[43]ACTU, Submission 110, p. 9. See also support for the ACTU submission expressed by: Unions WA, Submission 7, p. 1; MEU, Submission 8, p. 21; AWU, Submission 9,p. 2; Australian Manufacturing Workers’ Union (AMWU), Submission 16, p. 3; UWU, Submission 17, p. 2; SDA, Submission26, p. 1; HSU, Submission 32, p. 3; ASU, Submission 33, p.3; TWU, Submission 37, p. 4; Australasian Meat Industry Employees’ Union (AMIEU), Submission 41, p. 2; MEAA, Submission 56, p. 1; FSU, Submission 63, p.3; ETU, Submission61, p. 3; AEU, Submission 113, p. 1; National Tertiary Education Union, Submission 114, p.2; Independent Education Union, Submission 116, p. 1; CPSU –PSU Group, Submission 119, p. 1; Queensland Council of Unions, Submission 166, p. 1.

[44]Victorian Trades Hall Council, Submission 62, p. 2.

[45]Australian Council of Social Service, Submission 99, p. 3.

[46]CSSA, Submission 117, p. 2.

[47]Professor Andrew Stewart, Submission 158, pp. 10–11.

[48]Law Council of Australia, Submission 168, p. 5.

[49]See, for example, Business Council of Australia (BCA), Submission 14, p. 15; Ai Group, Submission31, p. 5; and COSBOA, Submission79, p. 2.

[50]This legal advice was obtained by the BCA from Mr Stuart Wood AM KC, and subsequently provided to the committee following a hearing. See Answers to questions taken on notice at a public hearing in Sydney on 3 October 2023 by the BCA, received 19 October 2023.

[51]This quote is from the legal advice provided by Mr Stuart Wood to the BCA, cited in Mr Bran Black, ‘Radical casual work overhaul will cost jobs’, Financial Review, 18 October 2023, and on the BCA’s website.

[52]Mr Bran Black, Chief Executive, BCA, Proof Committee Hansard, 3 October 2023, p. 86.

[53]ACCI, Submission 130, p. 7.

[54]See, for example, see: BCA, Submission 14, pp. 7–8; ARA, Submission 29, pp. 3–4; Ai Group, Submission31, p. 5; MCA, Submission50, p. 9; COSBOA, Submission79, p. 2; and ACCI, Submission130, pp. 10–11.

[55]Mrs Heidi Cooper, CEO, Business Chamber Queensland (BCQ), Proof Committee Hansard, 31October 2023, pp. 52–53.

[56]ARA, Submission 29, pp. 3–4.

[57]COSBOA, Submission 79, p. 4.

[58]ACCI, Submission 130, p. 7.

[59]Mrs Heidi Cooper, CEO, BCQ, Proof Committee Hansard, 31October 2023 pp. 52–53.

[60]Dr Eugene Schofield-Georgeson, Submission 144, pp. 5 and 6.

[61]DEWR, Supplementary Submission 42.1, p. 5.

[62]DEWR, Supplementary Submission 42.1, p. 6.

[63]See evidence provided by Mr Stephen Ferguson, National CEO, Australian Hotels Association (AHA), Proof Committee Hansard, 31 October 2023, p. 57–58. See also: Document tabled by the AHA at a public hearing in Rockhampton on 31 October 2023, p. 1 (email from the Minister’s office).

[64]See, for example, DEWR, Submission 42, p. 26, Hireup, Submission 24, p. 3; Professor Andrew Stewart, Submission 158, p. 14; Dr Michael Rawling, Submission 1, p. 7.

[65]Jaan Murphy and Daniel Griess, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, Bills Digest No. 17, 2023–24, Parliamentary Library, Canberra, 2023, p. 28.

[66]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, p. 2.

[67]Jaan Murphy and Daniel Griess, Fair Work Legislation Amendment (Closing Loopholes) Bill 2023, Bills Digest No. 17, 2023–24, Parliamentary Library, Canberra, 2023, p. 28.

[68]United Workers’ Union (UWU), Submission 17, p.10.

[69]Uniting Church in Australia – Synod of Victoria and Tasmania, Submission 157, pp. 3–4. This submission refers to a 2018 survey of ride-share drivers that found they were earning $16 per hour before costs, as well as a 2023 survey that found drivers earned just over $12 per hour after costs. The 2018 survey also found that 60 per cent of drivers could not save enough money to provide superannuation or annual leave for themselves.

[70]Dr Michael Rawling, Submission 1, p. 7.

[71]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, pp. 3 and 4.

[72]ACTU, Submission 110, p. 21.

[73]McKell Institute, Submission 89, [p. 2] and The McKell Institute Queensland, Tough Gig – Worker Perspectives in the Gig Economy, April 2023. The survey ran from December 2022 to February 2023 and received responses from 1036 transport workers in the gig economy. The opt-in nature of the survey reflects common practice in surveys of the gig economy in Australia to date and means that there is a degree of selection bias present in the results. See also, TWU, Submission 37, pp. 12–13.

[74]Rideshare Driver Network, Submission 134, p. 2.

[75]McKell Institute, Submission 89, [p. 2].

[76]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, p. 5.

[77]Hireup, Submission 24, p. 3.

[78]WWC SA, Submission 105, p. 11 and Professor Andrew Stewart, Submission 158, p. 14.

[79]Emeritus Professor David Peetz, private capacity, Proof Committee Hansard, 3 October 2023, p. 1.

[80]Per Capita, Submission 101, p. 12 and Health Services Union (HSU), Submission 32, p. 15–16. PerCapita referred to the findings of a 2019 National Platform Work Survey. The HSU referred to reports from its members, as well as the 2023 report of the NDIS Quality and Safeguards Commission’s Own Motion Inquiry into how Platform Providers operate in the NDIS Market. See also, Mr Jordan O’Reilly, Executive Director, Hireup, Proof Committee Hansard, 10 October 2023, p.29.

[81]Professor Andrew Stewart, Submission 158, p. 14. See also, Per Capita, Submission 101, p. 12.

[82]ACTU, Submission 110, p. 14.

[83]Hireup, Submission 24, p. 4.

[84]Dr Michael Rawling, Submission 1, p. 9.

[85]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, p. 3.

[86]Professionals Australia, Submission 66, p. 4.

[87]Ms Jacqueline Bull, Chief Operating Officer and Co-Founder, Sidekicker, Proof Committee Hansard, 10 October 2023, p. 75.

[88]Mr Timothy Zafir, Co-Founder, Humdrum, Proof Committee Hansard, 10 October 2023, p. 76.

[89]Hireup, Submission 24, p. 5.

[90]DEWR, Submission 42, p. 26.

[91]UWU, Submission 17, p. 3; Catholic Religious Australia, Submission 69, p. 3; McKell Institute, Submission 89, [p. 1]; Hireup, Submission 24, p. 12]; Ms Jacqueline Bull, Chief Operating Officer and Co-Founder, Sidekicker, Proof Committee Hansard, 10 October 2023, p. 75; Mr Timothy Zafir, Co‑Founder, Humdrum, Proof Committee Hansard, 10 October 2023, p. 76.See also, Victorian Trades Hall Council, Submission 62, p. 1; Dr Eugene Schofield-Georgeson, Submission 144, pp. 8–9; AssociateProfessor Alysia Blackham, Submission 145, p. 3; Emeritus Professor David Peetz, private capacity, Proof Committee Hansard, 3 October 2023, p. 2.

[92]Associate Professor Chris F. Wright, Submission 21, p. 7.

[93]ACTU, Submission 110, p. 24; Catholic Social Services Australia, Submission 117, p. 3; Professionals Australia, Submission 66, p. 3; St Vincent de Paul Society, Submission 121, p. 4. See also, WEstjustice Community Legal Centre, South-East Monash Legal Service (SMLS), and JobWatch Inc, Submission 141, p. 2; Professor Anthony Forsyth, Professor Shae McCrystal and Associate Professor Tess Hardy, Submission 163, [p. 4]; Associate Professor Alysia Blackham, Submission 145, p. 3; Media, Entertainment & Arts Alliance, Submission 56, p. 2.

[94]Menulog, Submission 136, p. 1; DiDi, Submission 49, [p. 2]; Uber, Submission 40, [p. 2]; Mable, Submission 30, p. 1; DoorDash, Submission 39, p.1; Airtasker, Submission 140, p. 3. See also, Restaurant and Catering Industry Association, Submission 93, p. 5; Mr Bran Black, Chief Executive, BCA, Proof Committee Hansard, 3 October 2023, p. 89.

[95]Mr Dominic Taylor, Managing Director, Uber Australia and New Zealand, Proof Committee Hansard, 10 November 2023, p. 18.

[96]Professor Anthony Forsyth, Professor Shae McCrystal and Associate Professor Tess Hardy, Submission 163, [p. 4].

[97]Mr Jordan O’Reilly, Executive Director, Hireup, Proof Committee Hansard, 10 October 2023, p. 29.

[98]BCQ, Submission 46, pp. 15 and 16; DiDi, Submission 49, [p. 2]; Direct Selling, Submission 86, p. 1; MCA, Submission 50, p. 9. See also, ACCI, Submission 130, pp. 38­–39; Restaurant and Catering Industry Association, Submission 93, p. 6; Master Electricians Australia, Submission 52, p. 6.

[99]See, for example, ACCI, Submission 130, p. 38; Doordash, Submission 39, p. 8; Menulog, Submission136, pp. 23 and 24; Master Builders Australia, Submission 19, p. 43; BCQ, Submission 46, pp. 15–16; Uber, Submission 40, [pp. 15, 16 and 17].

[100]Housing Industry Association, Submission 71, p. 16.

[101]Direct Selling, Submission 86, p. 1.

[102]Direct Selling Australia, answers to written questions on notice asked by Senator Sheldon, received 11 December 2023, p.

[103]DEWR, SupplementarySubmission 42.1, p. 17.

[104]Professor Anthony Forsyth, Professor Shae McCrystal and Associate Professor Tess Hardy, Submission 163, [p. 5].

[105]DEWR, SupplementarySubmission 42.1, p. 17.

[106]DoorDash, Submission 39, p. 1.

[107]DoorDash, Submission 39, pp. 3–4; Canberra Business Chamber, Submission 132, [p. 2]; ARA, Submission 29, p. 5.

[108]Dr Michael Rawling, Senior Lecturer, Faculty of Law, University of Technology Sydney, Proof Committee Hansard, 3 October 2023, p. 33.

[109]Hireup, Submission 24, p. 4.

[110]The McKell Institute, Submission 89, [p. 2].

[111]Health Services Union (HSU), Submission 32, p. 15.

[112]Professor Chris F. Wright, Submission 21, p. 10.

[113]Migrant Workers Centre, Submission 67. p. 2.

[114]Per Capita, Submission 101, p. 12.

[115]DoorDash, Submission 39. p. 4; Menulog, Submission 136, p. 8; Uber, Submission 40, p. 7.

[116]Emeritus Professor David Peetz, private capacity, Proof Committee Hansard, 3 October 2023, p. 2. Seealso, Dr Michael Rawling, Senior Lecturer, Faculty of Law, University of Technology Sydney, Proof Committee Hansard, 3 October 2023, p. 32.

[117]HSU, Submission 32, p. 24.

[118]DEWR, SupplementarySubmission 42.1, p. 17.

[119]DEWR, SupplementarySubmission 42.1, pp. 18 and 19. The amendments will also clarify that any steps taken by a digital labour platform to comply with their obligations under the new provisions would not be taken into account for the purpose of assessing whether or not a worker is an employee.

[120]Council of Small Business Organisations Australia, Submission 79, p. 9; Restaurant and Catering Industry Association, Submission 93, p. 6; DoorDash, Submission 39, p. 1; Centre for Independent Studies, Submission 107, p. 4. See also, Mable, Submission 30, p. 2.

[121]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, p. 4.

[122]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, p. 5.

[123]Catholic Religious Australia, Submission 69, p. 3.

[124]Professor Chris F. Wright, Submission 21, p. 10.

[125]DEWR, SupplementarySubmission 42.1, p. 17.

[126]Mable, Submission 30, pp. 1, 2 and 5.

[127]HSU, Submission 32, p. 24.

[128]Witness E, private capacity, Proof Committee Hansard, 10 October 2023, p. 9.

[129]Ms El Gibbs, Director, Policy and Advocacy, Disability Advocacy Network Australia, Proof Committee Hansard, 10 November 2023, pp. 76 and 78.

[130]Ms Catherine McAlpine, CEO, Inclusion Australia, Proof Committee Hansard, 10November 2023, p.78.

[131]Ms Carolyn Smith, State Secretary, UWU, Proof Committee Hansard, 6 October 2023, p. 44.

[132]Mable, Submission 30, p. 1.

[133]Dr Alex Veen, Dr Caleb Goods, Dr Brett Smith, and Dr Tom Barratt, Submission 147, pp. 4 and 5.

[134]HSU, Submission 32, pp. 7 and 8. Rates paid to employees under a modern award or enterprise agreement compensate employees for their labour. Superannuation, paid leave, penalty rates, overtime and other allowances are in addition to the rate of pay received by employees (for casual workers, some of the additional costs are compensated by way of a 25 per cent loading). In contrast, rates paid to workers under digital labour platforms are all inclusive. In almost all cases, digital labour platforms deduct a service fee from those rates reducing the amount actually paid to the worker. Nor is anything additional added to provide cost recovery for workers for the tools and equipment needed to perform the work (for example, a car, mobile phone, PPE and other tools of the trade). When those costs are accounted for, the actual labour component of the rate is much lower than the headline rates ostensibly earned by workers.

[135]Mr Timothy Zafir, Co-Founder, Humdrum, Proof Committee Hansard, 10 November 2023, pp. 75–76.

[136]Mable, Submission 30, pp. 7–8. See also, CCIWA, Submission 15, p. 15.

[137]Hireup, Submission 24. p. 10.

[138]ASU, Submission 33, pp. 5 and 6.

[139]DEWR, Allow the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable (accessed 1 February 2024).

[140]DEWR, Submission 42, p. 30

[141]DEWR, Allow the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable (accessed 1 February 2024).

[142]Senate Rural and Regional Affairs and Transport Committee, Without Trucks Australia Stops: the development of a viable, safe, sustainable and efficient road transport industry, p. xi, (accessed 1 February 2024).

[143]ARTIO, Submission 2, p. 4.

[144]Dr Michael Rawling, Submission 1, p. 2.

[145]NRFA, Submission 6, Attachment 1, Road Transport Industry Position Statement, p. 2.

[146]NRFA, Submission 6, Attachment 1, Road Transport Industry Position Statement, p. 2.

[147]NRFA, Submission 6, Attachment 1, Road Transport Industry Position Statement, p. 2.

[148]TWU, Submission 37, p. 9.

[149]TWU, Submission 37, p. 8.

[150]Mr Michael Kaine, National Secretary, TWU, Proof Committee Hansard, 3 October 2023, p. 15.

[151]DEWR, Submission 42, p. 31.

[152]Mr Ian MacDonald, Proof Committee Hansard, 11 October 2023, p. 61.

[153]Dr Michael Rawling, Submission 1, p. 13.

[154]Fair Work Ombudsman, Road Safety Remuneration System(accessed 1 February 2024).

[155]Mr Alexander Mackinlay, Board Member, NRFA, Proof Committee Hansard, 10 October 2023, p. 36.

[156]Mr Chris Roe, Board Member, NRFA, Proof Committee Hansard, 10 October 2023, p. 39.

[157]Mr Alexander Mackinlay, Board Member, NRFA, Proof Committee Hansard, 10 October 2023, p. 36.

[158]Ms Michelle Harwood, Executive Director, Tasmanian Transport Association, Proof Committee Hansard, 11 October 2023, p.41.

[159]Mr Paul Ryan, Chair, Transport Education Audit Compliance Health Organisation, Proof Committee Hansard, 11 October 2023, p. 38.

[160]DEWR, Submission 42, p. 32.

[161]Mr Cameron Dunn, Managing Director, FBT Transwest, Proof Committee Hansard, 11 October 2023, p. 37.

[162]Emeritus Professor David Peetz, Proof Committee Hansard, 3 October 2023, p. 4.

[163]ACTU, Submission 110, p. 25.

[164]DEWR, Supplementary Submission 42.1, p. 10 and DEWR, Enhancing Delegates Rights (accessed 1February 2024).

[165]MEU, Submission 8, p. 20.

[166]DEWR, Submission 42, p. 16.

[167]DEWR, Submission 42, p. 16 and DEWR, Enhancing Delegates Rights (accessed 1February 2024).

[168]See, for example, Mining and Energy Union, Submission 8, p. 21.

[169]ACTU, Submission 110, p. 55.

[170]AEU, Submission 113, p. 7

[171]IEU, Submission 116, p. 6.

[172]CfW, Submission 108, p. 10.

[173]CfW, Submission 108, pp. 3 and 10.

[174]See, for example, Lynas Rare Earths, Submission 10, [p. 6], and Clubs Australia Submission 135, p. 6.

[175]DEWR, Supplementary Submission 42.1, p. 10.

[176]DEWR, Supplementary Submission 42.1, p. 9.

[177]Mr Eugene Lehmensich, Independent Education Union of Australia, Proof Committee Hansard, 10November 2023, p. 49.

[178]Mr Scott Weber, Chief Executive Officer, Police Federation of Australia, Proof Committee Hansard, 3October 2023, p. 59.

[179]Ms Veronica Yewdall, Independent Education Union of Australia, Proof Committee Hansard, 10November 2023, p. 49.

[180]Mr Scott Weber, Chief Executive Officer, Police Federation of Australia, Proof Committee Hansard, 3October 2023, p. 60.

[181]Ms Michele O’Neil, President, Australian Council of Trade Unions, Proof Committee Hansard, 10November 2023, p. 25.