SPEECH: ADDRESS TO THE AUSTRALIAN LABOUR LAW ASSOCIATION

Acknowledgements

Given everything that has happened since those more optimistic and carefree times of November 2018, three years does feel like a lifetime.

COVID didn’t create insecure work. But it put a spotlight on insecure work. It stress tested every workplace to determine who was secure, who was essential, which workers the economy and the government was willing to cast aside.

It served as an ego check on those of us who might be on higher incomes.

It turns out the essential workers were the retail workers, the cleaners, the transport and logistics workers, the carers. The more essential you were, the less likely you had secure work.

But if you had insecure work in the industries that were completely shut down you were more likely to be stood down, and less likely to be eligible for JobKeeper payments.

As we emerge from the lockdown phase of the pandemic there is a real risk that those who lost secure jobs during the pandemic will return to the workforce in insecure work.

We might have been told we were all in it together, but the impacts were not shared equally. They fell disproportionately on low paid and insecure workers, women, young people and migrant workers.

The dangers of a labour force with higher than average rates of precarious work and indirect employment were truly exposed by COVID.

When COVID began, casual workers lost their jobs eight times faster than permanent workers and accounted for nearly two-thirds of the job losses.

And about one in three workers had no access to paid leave entitlements. And we were given the stark reminder that access to leave isn’t only a private benefit. It has workforce and community repercussions. Workers who had symptoms but felt well enough to work had to risk whether they could afford to be tested, knowing the risk of isolating for two weeks meant having nothing to live on.

Have a look at the social media accounts of the Federal and State Members of Parliament across Western and South Western Sydney during the lockdowns. You’ll notice something unusual. We all had huge teams of volunteers in our areas delivering food parcels.

In my local area, volunteers kept remarking how shocked they were at the number of people who had no other way of being fed during the pandemic. The common refrain was this was what it was like in the countries they had fled, but they had never expected it in their new home, Australia.

Many of these people had been working for years in Australia. But their work had been insecure, and now it felt that their lives were too.

The fissures around the breakdown of traditional employment arrangement, became cracks and in many cases, gaping holes - for example when nearly a million casual workers found themselves ineligible for JobKeeper.

The experience of the pandemic as a worker would be determined by:

• Whether you could work from home

• The industry you worked in and whether you were an essential or non-essential worker

• Whether you had to take on additional caring responsibilities – children, older parents or family members with a disability

• Your employment status – particularly whether you were a casual employee, or one of the record number of Australians now working in multiple jobs.

• Whether you could access paid leave.

The experience of COVID for hundreds and thousands of Australians has been to leave them with less work, less income, less or no paid leave, less or no superannuation savings and certainly, less job security.

In considering the issues post COVID, Labor starts with three key principles to take us forward:

Secure jobs, with better pay and a fairer system.

The current federal government simply denies insecure work is a problem.

I worry that some of our agencies are increasingly mirroring government talking points rather than providing serious advice. We saw that view most recently demonstrated in the latest round of Senate Estimates two weeks ago.

As my Senate colleagues questioned the Industrial Relations minister and her department, all we got from the minister and her officials behind the table was the usual nothing to see here.

The most disappointing part of it all was the absence of any sign the government or the department was considering any lessons from the pandemic, let alone acting on them.

Later that same day we heard evidence from the Fair Work Ombudsman.

In response to a perfectly reasonable question from a Labor senator asking whether wage theft is inherently more likely to be attached to insecure forms of work, the Fair Work Ombudsman replied, and I quote:

“…we don't define insecure work the way that I think you do. Being a casual is completely acceptable under the Fair Work Act, as is being an independent contractor or a labour hire worker. All of those things are perfectly acceptable, so we don't judge them as being insecure”.

This from a highly paid statutory office holder dealing every day with the most egregious examples of wage underpayments of low paid, vulnerable workers. The government from time to time will claim that Labor views a series of forms of work as not acceptable, Christian Porter had a go at this when he announced a Labor policy that we hadn’t announced and didn’t announce. But to see that spin come directly from the Fair Work Ombudsman concerns me deeply. It mirrors some of the partisan behaviour that has been previously seen from the ROC and the ABCC.

Not only was this a glib response to a serious question, but a deliberate mischaracterisation of Labor’s concern about insecure work as somehow being an all-out objection to these forms of work.

I want to make it clear there is an entirely legitimate place for casual work, labour hire, fixed term contracts and other forms of employment that allow employers and businesses to manage surge times in their business and the need for short term or occasional labour.

What there is no place for is employers who engage in the deliberate abuse of those forms of work to avoid and offload employment risks, responsibilities and entitlements on workers in order to undercut their competitors in a zero-sum race to the bottom on labour costs.

The Government says there isn’t a problem, but I’m here to say that is not the lived experience of millions of Australians. What the Government is really saying, is that it knows what the abuse of insecure work does to workers and to the economy, and it is ok with that outcome.

Insecure work can be defined in several ways, however its hallmark is a lack of certainty or predictability of hours or days of work and income.

An insecure worker has little or no control over their shifts, and is unable to choose the days or times of work that suit them.

Refusal to work requested shifts can lead to less work being offered.

Insecure workers are expendable.

The employer lobby groups’ mantra of flexibility is a one way street.

For women with caring responsibilities, insecure work is a living nightmare as we read in the excellent report commissioned by the SDA union and undertaken by researchers from the University of New South Wales, titled “Who Cares – Challenges of Work, Family and Care”.

Through the testimony of women in the retail industry the report documents how even part-time work has become insecure.

The benefit of part time work, and the reason so many women in particular are attracted to part-time work, is for the predictability of hours and pay, but with the flexibility to allow them to manage the other responsibilities which too often fall unevenly on them.

Instead we are now seeing an erosion and degradation of permanent part time work which potentially sees these workers worse off than a casual employee.

As the SDA study revealed, some permanent part time workers are engaged to work as little as 3 hours per week.

When the majority of hours worked by a part timer are not contracted, it’s hard to argue this is a permanent job.

Most of the worker’s take home pay is insecure.

There was a time when talking about insecure work made no mention of part time workers.

Now too many part time workers are part of the story of insecure work.

Too many part time workers have no idea what their pay will be week to week.

There is a place for flexibility but insecurity is out of control.

Many workers in insecure work find it difficult to meet their day to day living expenses.

While take home pay has been less secure, costs of living don’t change.

Rent and mortgage payments aren’t casual, energy bills aren’t casual.

Grocery bills aren’t casual.

But the government has never treated the increasingly lived experience of insecure work as a problem.

We have ten to twelve bills introduced to the parliament every year to amend tax law and safeguard the security of government income.

The security of take-home pay has been a story of deliberate neglect over the past eight years.

This has left the courts, rather than the parliament, as the key forum for working through what the rules will be that determine how secure Australian jobs are.

And this just leaves some workers out entirely.

When the Fair Work Act was drafted over 12 years ago, it didn’t foresee the re-emergence of a form of work from the last century and beyond.

The gig economy carries benefits that consumers want. It brings with it convenience and efficiency on platforms that I use. But you can have 21st Century technology without 19th Century working conditions.

Last Friday, the Guardian reported that the number of adults in England and Wales working for gig economy companies reached 4.4 million.

That is now two-and-a-half times bigger than it was in 2016, according to the report carried out by the University of Hertfordshire and the consultancy BritainThinks, highlighting the rise of insecure working practices.

Almost 15% of working adults now get paid by a platform such as Deliveroo, Uber and Amazon’s delivery arm Flex, compared with about 6% in 2016 and just under 12% in 2019.

And it is expected to grow.

Back in Australia, gig work is also growing rapidly, but also creeping into more and more sectors of our economy.

This includes the care economy and most infamously, the government funded National Disability Insurance Scheme.

As we know only too well, a large number of gig workers are paid below minimum wage.

They receive no leave entitlements, no superannuation and no workers compensation if they are injured, as they all too frequently are, or worse, killed.

When government ministers can’t give a straight answer to the question “Should Australian workers be paid at least the minimum wage?” it’s clear they have no intention of fixing the problem.

That’s bad news for every exploited worker and a dire warning for every established employer who now has to compete against those who are determined to engage in a race to the bottom.

We need to allow the Fair Work Commission to make orders for employee like workers. At the moment if you don’t meet the definition of employee all your rights fall off the cliff. We need to replace that cliff with a ramp so that the commission can make orders to protect minimum standards to the extent a worker is employee like.

Last week’s momentous decision by the Fair Work Commission on piece rates in the horticulture industry demonstrates that where they are given the capacity to do so, the Commission can do its job and ensure all workers in this country are paid fairly for their work.

We cannot tolerate a situation in this country where workers are paid as little as $4 per hour, or even less.

This is what happened to Kate Hsu, a Taiwanese worker paid just $4 an hour picking oranges on a South Australian farm and forced to eat from public garbage bins to survive.

Kate’s story was revealed in a Unions NSW report about wage theft and exploitation in the horticultural industry. I met with Kate in Parliament House.

Kate was one of the many victims of the ‘piece rates’ payment structure, where workers are paid by the quantity of fruit or vegetables they pick during a shift.

According to the report, the majority of piece rate workers were underpaid with some receiving as little as $1 an hour and only 2 per cent paid the legitimate rate of $26 an hour.

The Fair Work Commission’s ruling that workers picking fruit on a piece rate must be guaranteed a minimum wage under the Horticulture Award was, as Australian Workers Union Secretary Daniel Walton said, “one of the most significant industrial decisions of modern times”.

It was a recognition that the Award was not fit for purpose and needed to be fixed.

It should be noted that this historic and correct decision was made in the absence of any Government action or apparent interest.

This is a government that simply doesn’t see a need to guarantee the minimum wage.

It’s happy to spend millions in taxpayer funds intervening in legal cases all the way to the High Court to ensure labour hire workers employed as casuals but who work on a full time permanent basis are denied their entitlements  - in the case of Rossato  - and to strip shift-workers of their personal leave  - in the case of Mondelez - but not to act to guarantee a vulnerable worker the legal minimum wage.

It’s extraordinary, intervene to keep work insecure, go missing when someone needs the minimum wage.

Now lockdowns have ended we can expect jobs to return rapidly.

But we can also expect to see:

-      more casual jobs

-      the further erosion and degradation of permanent part time work with casual like flexibility minus the casual loading,

-      more undercutting of genuinely negotiated enterprise agreements via labour hire and outsourcing; and

-      a widening gender pay gap

Insecure work is a problem, and unless we intervene it will get even worse.

An Albanese Labor government has a plan to address it through our Secure Australian Jobs Plan based as I said at the beginning on three principles: secure jobs, better pay and a fairer system.

We will make job security an object of the Fair Work Act.

I’m sure the significance of that is not lost on this audience - we want every decision the Fair Work Commission makes to consider job security.

We will restore the proper, common law definition of casual employment and stop the rorting where casual employment simply becomes another form of sham contracting.

We will put a stop to unnecessary and endless, back to back fixed term contracts that give workers no security and make it so hard for them to plan for their future or get a loan.

An Albanese Labor government will be a model employer and we will leverage our procurement power to ensure taxpayers’ money is used to support secure employment.

Government can play a huge role in raising the standards around employment, but sadly has itself been a perpetrator when it comes to insecure work.

Labour hire, outsourcing and back to back fixed term contracts have become an all too familiar feature of the public sector.

As a major employer, government can lead the fight against job insecurity, including by using the power of its significant spend to support companies that are themselves good employers.

We will legislate a right to ten days’ paid family and domestic violence leave.

We will implement all 55 recommendations of the Respect@Work Report to ensure everyone who goes to work can expect a safe workplace free from discimination and harassment.

We will introduce “Same job, same pay” to address the increasing use of labour hire and outsourcing to undercut properly negotiated bargaining agreements.

We will stop bad businesses undercutting good.

We’ll ensure our equal pay laws do their job, so women get the pay they deserve. We will outlaw use of pay secrecy clauses and require companies with more than 250 employees to publicly report their gender pay gap each year.

And we will criminalise wage theft – once and for all.

We’ll also ensure workers have a quick and easy way to get their wages back and the system is easy and fair for employers who want to do the right thing.

We will restore balance to the Fair Work Commission. It was set up to be centrist, sensible and practical and has been subject to stacking and partisan appointments. We will abolish the ROC and the ABCC. They were set up to be partisan and have been exactly that.

CONCLUSION

Often in Australian politics the political debate is about how we respond to the problems that confront our nation. Right now the key debates in industrial relations are fundamentally different.

The government sees the same data we see, the same workplaces we see but doesn’t view it as a problem.

If you are juggling multiple jobs, you see the problem.

If you are trying to organise finance but can’t guarantee what you’ll paid in two weeks time, you see the problem.

If you have responsibility for dependants you see the problem.

If you are sick and have to choose between pay and having nothing to live on, you see the problem.

If the person working beside you doing the same job is employed by a labour hire firm with lower pay and conditions, you see the problem.

Labor sees the problem.

Our Secure Jobs Plan for Australia addresses it.

The proposals within it are the obvious ways to improve job security.

But the political divide is huge for the simple reason that the government does not even believe there is a problem to fix.

We can have secure jobs again in Australia. Whether we do will be one of the clear dividing lines at the next election.

I wish you all the best for your deliberations over the next two days and thank you once more for the opportunity to address you.

ENDS