Dear member,

I write to you following our article in the MPAQ Update on Monday 29 January 2023 relating to the Fair Work Legislation Amendment (Closing Loopholes No. 2) Bill 2023 (the Bill).

MPAQ is committed to advocating against legislation that unfairly burdens small businesses within our industry. We believe that some of the proposed amendments to employment legislation in this Bill may have adverse effects on small businesses. We ask for your support to take action and send correspondence to your local Member of Parliament to let them know about your concerns about the Bill.

Below is a summary of our concerns:

• The Bill proposes the Fair Work Commission (FWC) to be given new powers that affect "employee-like" workers who are engaged through "digital labour platforms". The proposed jurisdiction is overly expansive and risks encompassing numerous independent contracting arrangements across industries where the Government has not provided justification for establishing minimum standards. 
• The proposed provision in the Bill extends far beyond the Government's initial pledge to establish such standards solely within the rideshare and food delivery sectors. Many independent contractors advertise through "digital labour platforms" such as apps and websites like AirTasker, Hipages, OneFlare, Find a Plumber, etc.
• This Bill represents a notable interference in the business arrangements of independent contractors and self-employed individuals. It could prevent the freedom of independent contractors to establish their own rates and terms and to maintain flexibility in their work, suitable to meet the Government demands on the building and construction industry. 
• The broad definitions of "same job" and "same pay" outlined in the Bill could have detrimental effects on experienced workers. By law, individuals with decades of expertise could be required to receive the same pay as those just starting out in similar roles at different employers. This undermines the principles of merit-based reward and may discourage employers like yourself from offering bonuses or incentives based on performance and experience. In an aging industry, there are significant concerns this policy will force experienced workers to leave the industry at a faster rate than new employees can replace them.
• The Bill provides the FWC with new powers to make orders in relation to "unfair contract terms" in independent contracting arrangements (which are below the High-Income Threshold). The Bill does not provide a definition of what constitutes an "unfair contract term" which allows the FWC to be left with discretion over what constitutes "unfair". The FWC is intended to handle disputes between employers and employees, not between two businesses, therefore expanding jurisdiction of FWC.
• Additionally, this could provide the FWC with the authority to "approve" agreements between large corporations and unions, effectively allowing them to set prices within supply chains and impose terms on small businesses. Such measures could disproportionately affect smaller enterprises and hinder their ability to negotiate fair contracts.
• The proposed wage theft amendments, whilst we support aspects of the proposal, does not look at the fundamental reasoning of underpayments within Australia - which is the complexity of the industrial relations system. This Bill will only add to that complexity in compliance.
• The proposed definition of a "casual" employee considers not only the contract of employment but also the “real substance, practical reality, and true nature” of the employment relationship and that there is "no firm advance commitment to continuing or indefinite work". This broad definition could essentially stop casuals working regular patterns of work that are suitable to the individual and also assists businesses in times of peak labour demands. This requirement on small business to remain compliant adds complexities and financial burdens. 
• The Bill proposes an expansion of union powers to conduct workplace searches and seizures which raises concerns about privacy and employer autonomy in terms of "delegate rights" and "right of entry" amendments. Granting unions greater authority than law enforcement to enter workplaces and offices, with limited notice requirements, may disrupt operations and compromise confidentiality. It is unclear as to why notice should not be given to employers when a union official is entering a workplace.
• Additionally, the inclusion of new fines and back pay penalties for businesses that misclassify employees in an already complex industrial relations system adds further complexity and potential financial burden, especially on small businesses.

We encourage you to raise these concerns with your local MP through correspondence as our voices are louder together. Please click here for a template letter that you can use. 

MPAQ is working with Master Plumbers Australia and New Zealand to raise our concerns on this matter directly with the Hon Tony Burke MP, Federal Minister for Employment and Workplace Relations and Minister for the Arts.

Please reach out if you have questions, concerns, or feedback.

Kind Regards,

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