Labor reworks casual rules, gig economy changes in amended IR Bill

The Albanese government’s amended Closing Loopholes Bill has passed in the House of Representatives, ensuring the industrial relations reforms will face the Senate and crossbenchers frustrated by the government’s handling of the controversial package.

Amendments introduced by the Albanese government on Tuesday include the scrapping of its original plan to impose civil penalties for breaching some casual work rules and new assurances that ’employee-like’ gig workers will not count as full employees.

The lower house also backed a Greens proposal to criminalise superannuation theft, in line with Labor’s efforts to criminalise wage theft.

Casual work carve-outs

Workplace Relations Minister Tony Burke on Tuesday introduced dozens of amendments to the government’s IR Bill, after meeting with industry representatives concerned about the potential consequences of the legislation.

Among the amendments is a clarification of the government’s approach to casual work.

Labor wants to establish a new legislative definition of casual work, in an attempt to stop employers from misrepresenting part-time or full-time jobs that have predictable hours and rosters as casual positions.

Industry groups, including the Australian Hotels Association, feared Labor’s test could cover casual workers who prefer to work in limited timeframes — like students who only work on weekends — and receive predictable rosters as a result.

Employers also feared that casual workers who opt for predictable hours — but do not seek conversion to part-time or full-time employment when they become eligible to do so — could be caught by the misrepresentation rules, exposing their employer to new risks.

If passed into law, the Labor amendment will ensure that a regular and predictable pattern of work will not, in and of itself, determine if a ‘casual’ employee is actually working on a part-time or full-time basis.

The amendment makes clear that no single factor will indicate a “firm advance commitment to continuing and indefinite work”, which would render the role non-casual.

Labor also plans to remove part of the original Closing Loopholes Bill that would have exposed businesses to major civil penalties if they accidentally misrepresent a position as casual.

Gig economy amendments

Separately, the amendments to the IR Bill also clarify the government’s approach to its gig economy reforms.

Central to the Closing Loopholes package are measures that would empower the Fair Work Commission to enforce minimum standards for ’employee-like’ workers — or workers who operate on gig economy platforms but do not match the typical description of an employee or independent contractor.

The amendments ensure that anyone deemed an ’employee-like’ worker by the Fair Work Commission, and facing a minimum standards order as a result, “is not an employee in relation to particular digital platform work”.

The clarification is designed to prevent workers from trying to prove they were actually employees at the time of their work, and seek back pay and other benefits from the company as a result.

“This would provide certainty to digital labour platform operators that workers covered by these orders cannot later bring proceedings to recover unpaid employment entitlements,” according to the government.

The government amendments also underline the factors exempt from any minimum standards order, including:

• Penalty rates for the relevant gig workers;
• Payments for time spent before accepting a gig on a relevant digital platform, or ‘down time’ between gigs; or
• Minimum payments tied to a minimum period of engagement on a gig platform.

The government tweaks ensure that before the Fair Work Commission makes a decision, it must have “adequately consulted affected parties on the implications of the rights and obligations” of the agreement, giving gig platforms ample time to plead their case before an order is made.

Further, the amendments will allow gig economy platforms the chance to argue that temporary deactivation from a digital labour platform, which bars workers from completing tasks, can be a reasonable course of action.

Those amendments to the IR Bill came after consultations with Uber, Menulog, and Doordash, whose operations will be altered should the Fair Work Commission be granted new powers to set ’employee-like’ standards.

The crux of the Closing Loopholes‘ position on the gig economy, and plans to allow the Fair Work Commission to enforce minimum standards for ’employee-like’ workers, remains intact.

Labour hire and superannuation

The amendments also clarify various parts of Labor’s plan to crack down on what it sees as abuse of the labour hire system.

In particular, the amendments seek to clear up the difference between the provision of a service and the provision of labour, after the Australian Resources and Energy Employers Association expressed concern that certain contractors would be unduly roped into the reforms.

The amendments do not change Labor’s plan to exclude small businesses from its labour hire reform scheme, and its overarching goal of equalising the pay and conditions of employees and labour hire workers in the same business, same role, and with the same experience.

Separate to the government amendments, Burke on Tuesday flagged the government would also support amendments put forward by Greens leader Adam Bandt related to the criminalisation of superannuation theft.

“Most employers do the right thing, but, in those instances where they don’t, it’s that the employer doesn’t see it as a serious enough obligation to do it,” Bandt told the lower house.

The amendment will mean that “when a prosecution is happening for wage theft, it will allow for it to deal with superannuation theft at the exact same time,” Burke said.

“We know that, if there’s an underpayment that’s likely to happen first, it’s very likely that in fact it is superannuation. So we’re very pleased to support that part of the amendment.”

The measures put forward by Bandt were also adopted by the lower on Wednesday.

The amended package will now head to the Senate.

The overarching package is not expected to progress further than that until February 2024 at the very earliest, pending the outcome of a Senate committee report on the Bill and its potential consequences.

When it does reach the Senate, it will face the ire of crossbench Senators David Pocock and Jacqui Lambie.

Both have sought to carve off four non-controversial elements of the package and pass them into law, instead of being bogged down by debate over the Bill in its current all-encompassing form.