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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-06-16 Daily Xml
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Bills

Labour Hire Licensing (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2020.)

The Hon. K.J. MAHER (Leader of the Opposition) (15:43): I rise to speak on a labour hire licensing bill introduced by the Liberal government and note that it seems a lot like groundhog day: the Liberal government introducing a bill to wind back the labour hire licensing scheme. The Liberal government first tried to completely destroy the hard-won labour hire laws in South Australia, so we know what the actual aim of the nature and effect of any amendment to the bill really is; that is, to gut the scheme.

After the 2018 bill was rebuffed by the parliament, they came back with a proposal to amputate the vast bulk of how these laws would apply in their 2019 amendment bill. After proroguing the parliament, this was one of the very first bills that the government brought back to this place on 20 February this year, with a new attempt to gut this critical legislation. It says a lot about the priorities and what this government cares about that one of the first bills they introduce is one that seeks to turn back protections for some of the most vulnerable workers in this state.

Despite the government's clear desire to dismantle the labour hire licensing system, four months have passed and we now find ourselves, since the introduction of this bill, fighting against these unwarranted attacks on vulnerable workers. Having debated this matter three years ago, I did not think there would be a lot else to add.

When the government drafted this bill they did so with the wording that labour hire laws should only apply to vulnerable workers who undertake low-skilled work in high-risk sectors. 'Vulnerable', 'low-skilled' and 'high-risk' are simply a hat-trick of terms to narrow the scope of this bill and avoid providing critical protection to workers who need and deserve it.

The fact that this bill, in its objects, seeks to change the very definition of who it applies to is an indictment on this government. In every sector there can be workers who are vulnerable, in every sector there can be workers who are preyed upon by unscrupulous operators, in every sector there are workers who deserve and need our protection, not just in the few narrowly defined sectors this bill seeks to change it to.

As I said, there are very few workers this bill now seeks to protect. That is not what we think should happen. It is one of the clearest indications of the difference in mindsets between the Liberal Party and the Labor Party. We think all workers should be afforded protection from laws like labour hire laws: the Liberals think it should apply to only a few.

It is not just those of us on this side who think that is untenable and unscrupulous, organisations like the Wine Industry Association do not support the government's approach to narrow it down to just a few industries. Various industries think that if they are going to be targeted everyone should be targeted—and they are right.

It is not a fact that there are vulnerable workers in only the few industries the Attorney-General or Treasurer has thought up and put down on paper, there are vulnerable workers in every industry. It is not the case that there are unscrupulous operators in the labour hire industry in only the few industries the Attorney-General or the Treasurer has sought to put down on a bit of paper in this legislation. There is the potential for unscrupulous operators in every industry. To narrow this down so narrowly is an attempt, in another way, to completely restrain the effect of this scheme.

On this side of the chamber we will not stand for that, and I will outline the approach we will be taking during the committee stage of this bill. First, there is an amendment to clause 4, the very part where the government seems to think that not every area or every worker is deserving of protection, the objects of the act. We then have three amendments that seek to change the way the act operates: instead of it being a very, very narrow class of people and the ability, by regulation, to prescribe further classes of employment, we are seeking to have every class of employment included with the possibility of excluding some types if there are compelling reasons to do so.

So we take the opposite approach: instead of it applying to only a very limited sector and you can put more in, we are saying that it applies to everyone but there is the ability to take some sectors out. I indicate that if that group of amendments—amendments Nos 2, 3 and 4 [Maher-1]—fail, in the alternative we will be prosecuting amendment to clause 5 in the committee stage to increase the scope of this bill, to add extra areas, to increase activities to include further activities where there may be vulnerable workers.

It beggars belief that in the construction or data entry industries, for example, the government would be able to stand up and say, 'There are no vulnerable workers, there are no unscrupulous bosses in those industries.' That is just not the case. Every industry has the potential for that. If our amendments fail to allow it to cover all industries, with some being able to be taken out, we will then be pursuing our amendments that increase the number of industries that this applies to.

I want to make it very clear: this is a fundamental threshold issue for the opposition. We believe in the pride and dignity that work provides and the fact that everyone ought to be protected when they go about doing their work and not be subject to unscrupulous operators, and not be subject to schemes where people from other states, where there is a proper labour hire scheme in place, will seek to exploit the loopholes that this government is seeking to introduce. We will not stand for that.

The Hon. I. PNEVMATIKOS (15:50): It is with deep concern that I rise to speak on proposed changes to labour hire licensing. In a time like the present, where workers across all industries are vulnerable, the government is working to give contractors more power and standing in the way of workers' needs. This amendment bill will take away essential protections for vulnerable workers engaged in employment through labour hire firms in a range of industries. The failed attempt to repeal the previous Labor government's Labour Hire Licensing Act shows just how far the Marshall Liberal government's disregard for the act is.

Remarkably, the major failure of the repeal bill has not deterred the Liberal government from trying to erode the critical supports of labour hire licensing. The introduction of a very similar labour hire licensing amendment bill last year, and now this bill, demonstrates the Liberal government's determination to take away the rights and entitlements of workers. The simple fact is: giving employers greater powers and controls will hurt workers. The wage theft committee has uncovered the extent of wage theft in South Australia. We know that when mechanisms such as labour hire licensing are taken away workers become more vulnerable and employers take advantage of their workers.

I am compelled by the stories of those we have heard on the wage theft committee, research reports detailing the misconduct and my own personal work in labour law to confidently stand against this bill. It is time the Marshall Liberal government acknowledged their failure in protecting workers. Here today, we are discussing amending the very legislation that is one of the major mechanisms to ensure better standards in the workplace within our jurisdiction. Other state governments have implemented labour hire licensing and seen success. Here, our government seems fixated on diminishing its effectiveness.

After the failure to repeal the act in its totality, this government amendment bill further diminishes safeguards for workers and renders the legislation unworkable and ineffective by removing fundamental components of the act. The term 'high risk' is nonsensical when used in this legislation. Essentially, this term is being used to create two classes of workers: those who receive protection from exploitative behaviour and those who do not. It is apparent that some industries are more susceptible than others, but we cannot ignore the growing evidence that rogue contracting occurs in a wide range of industries throughout the economy.

The two-tiered structure for workers will isolate those who are entitled to protections from unscrupulous employers and those who are not. How is that helpful? How is that good policy? The amendment bill presents a picture that legislation should target just those who are most vulnerable as worthy of legislative protections rather than a broader statement of universality and legislation that protects all. We would never legislate this way in other areas, so why with this area? For example, most citizens obey traffic laws and rules. Should we narrow the legislation to target only those who do not? That would be purely ridiculous, not to mention diminish the effect of deterrents.

Workers who are employed through contracting arrangements such as labour hire are at great risk of exploitation. These arrangements exist in agriculture, mining, hospitality services and retail industries. Often, these are low-skilled workers, non-industry specific, who are subjected to systematic wage theft and are underpaid to avoid tax obligations, workers compensation payments, as well as superannuation. I have heard the argument made by some in this place that the licensing scheme in its current form catches employers who do the right thing. I quote the Attorney-General from the other place when she said:

We end up with a situation where the innocent are punished just to get a few guilty.

That is just the point. Put simply, unlicensed and rogue labour hire firms often supply labour in ways inconsistent with labour hire laws, which gives them an unfair competitive advantage.

Current labour hire licensing laws ensure fully compliant labour hire firms can be the role models for those conducting illegal activities whilst also creating a sizeable deterrent for firms to go rogue. The Labour Hire Licensing Act 2017 is a simple and fair approach to ensuring firms are undertaking due diligence with respect to their workers and are operating on a level playing field.

I know the opposition is not, but is the government truly willing to allow workers to be mistreated, underpaid and put in situations of perilous employment practices simply to save companies the trouble of applying for and adhering to the conditions of the licence? Why create further complexities with what is at stake being so high?

Again, the Liberal government is providing us with a choice between the low road, involving a lack of balances, compliance and protection for honest businesses which will result in more negative media stories, further damaging the reputation of industries and potential growth into new markets; or the high road, which involves allowing the act as it stands to enable real reforms to ensure that those businesses that are doing the right thing are not disadvantaged.

In fact, the government has taken every step possible to steer us away from the high road and have actively pursued postponing the operation of the act. If the government's amendments are passed, they will narrow the scope of the scheme to those industries where workers are most vulnerable to exploitation due to the low-skilled nature of the work they are engaged to undertake, namely, horticultural processing, meat processing, seafood processing, cleaning and trolley collection.

Should the legislation pass, we anticipate some businesses that are currently captured by the scheme will no longer require a licence. Those businesses may be entitled to a partial refund of their licence fee. It also means that 50 per cent of those who are currently required to apply for a licence would no longer be required to apply for a licence. Yes, that is correct. It has been confirmed by the Attorney-General's office.

I appreciate that Consumer and Business Services has been in conversation with Victoria and Queensland about the development of legislation, gaining insight and learning from what they have done, what works and what does not, and what is effective. I commend them for taking those steps to try to ascertain and clarify the definition of 'labour hire' and who they are trying to capture. I do, however, believe that the act makes the definition perfectly clear.

This definition was highlighted by my colleague the Hon Kyam Maher when the original legislation was introduced, and I reaffirm: a typical labour hire employment arrangement is a triangular relationship between the worker, the provider and the client that the worker is supplied to, with acknowledgment that there are variations on this model that are used to disguise the labour hire arrangements.

Businesses that undertake recruitment leading to direct employment on permanent job places, genuine independent contracting arrangements and workforce consulting services are not within the scope of the bill. Most essentially, an individual is a worker if they enter into an agreement with a provider for that provider to supply them to another person to work for that person.

If there is cause for concern, the commissioner has the power to grant a specific person or a specific class of person an exemption from the bill or specified provisions of the bill, to provide further clarification on the scope of the scheme, but 50 per cent is a bit heavy handed. I appreciate the task at hand is large but let's not forget the reasons why it was introduced, what was revealed by Four Corners and what was uncovered by this parliament's Economic and Finance Committee.

If this is a matter of resources, let us debate that. We have a responsibility and the ability to protect our workers, our honest business owners, our industries and our state's economies. This will only be diminished through the government's amendments proposed in this bill. At the end of the day, we cannot pre-empt areas to be rectified without seeing the legislation enacted. All we will be doing by passing this bill without opposition amendments is creating the very loopholes we attempted to close when this legislation was first introduced. It is for these reasons that I will not support this bill in its current form.

The Hon. C. BONAROS (16:00): I rise to speak in support of the second reading of the Labour Hire Licensing (Miscellaneous) Amendment Bill 2020. As we have heard, the bill amends the Labour Hire Licensing Act 2017, introduced by the former Labor government, and it does seek to narrow the scope of industries and professions captured by the Licensing Act to focus on vulnerable workers in high-risk industries.

The so-called broadbrush approach of the existing legislation has created an unnecessary layer of red tape for already highly regulated industries, and that is the basis on which this bill has come before us. Last May, I spoke on the repeal bill on behalf of SA-Best, and gave our very firm reasons for opposing the repeal of the Labour Hire Licensing Scheme. I stand by all of those comments; it was a bad idea that did not remedy anything. As I said at the time, what we ought to have been doing, if there were problems with the scheme, is address the problems and fix them; but you do not just knock an entire scheme out because you have identified some issues with it.

At the time we voiced our concerns about the practical applications of the legislation as well, and I acknowledge the efforts of the Attorney-General and her willingness to work with us on legislation on the concerns we have had around this legislation in a more focused and targeted manner. I have had those discussions with both the government and the opposition and with various stakeholder groups as well. We have always been amenable to working with the government and the opposition to tighten elements of existing legislation in need of change.

But I have said all along that we will not be influenced by either party's blind ideology on this issue, or any other issue. They are not my words, they are the words of the then acting leader of the opposition, who sought to label anyone who had a view different from hers as following some form of blind ideology. It is my firm view in this instance that the blind ideology that she was referring to was simply nonsensical, and this has become apparent throughout this debate, where it almost feels like we have been caught in the middle of politicking between Liberal and Labor over an issue that they cannot seem to agree on.

On that basis, I have continuously sought advice from the Commissioner for Consumer and Business Services and have chosen, instead of being guided by blind ideology, to be guided by the concerns of the regulator (and I have made that point all along), and I will continue to be guided by the concerns of the regulator. We will certainly not get caught in the middle of any politicking by either party.

The introduction of the current labour hire licensing laws were prompted by the 2015 airing of the Four Corners program, Slaving Away, which has been referred to and highlighted the potential for ruthless exploitation of our most vulnerable workers. It focused predominantly on migrant workers working in industries such as meat processing and fruit and vegetable picking, and it was disturbing viewing. It uncovered a culture of modern-day slavery, excessive working hours, coupled with gross underpayment of wages. One foreign worker spoke of being paid $3.95 per hour for grape picking. Another spoke of working 18 hours a day in an Adelaide poultry factory, and another of living in a horse stable with more than 10 other people in a similar predicament. It also touched on a number of state and federal reviews into worker exploitation.

My advice is that Victoria and Queensland currently have schemes that echo this legislation. The Northern Territory and Western Australia have made announcements but are yet to act. New South Wales and Tasmania have not yet declared their hands. What is abundantly clear, as a result of that exposé and as a result of what we are debating here today, is the need for a national scheme.

I will give credit where credit is due, and I do think that when we had these discussions the Attorney was genuine in her efforts to push the then prime minister and the leader of the opposition at a federal level, just prior to an election, to implement a national scheme that would deal with this issue once and for all. I also stand by the position that that is ultimately the best outcome for all of us: a nationally consistent approach that protects vulnerable workers from being exploited by unscrupulous labour hire companies.

Again, I will give credit where credit is due. The Attorney-General kept me abreast of all the developments and I think was equally frustrated when she set a deadline for the Morrison government—a Liberal prime minister—to take some action and they failed to do so. Of course, this year we have had COVID-19, which has no doubt put a spanner in the works of the best laid plans, but nevertheless she has undertaken that role and, as I say, kept me abreast of those developments, in terms of urging them to press ahead with the implementation of a nationally consistent scheme.

I continue to implore the Morrison government to work expeditiously on federal legislation that will do just that, that will protect vulnerable workers from exploitation by dodgy labour hire companies. As I have said before, the difficulty with the current legislation is, in our view, the unnecessary capture of some industries and professions.

There are elements in this bill that have been described as overkill. As I understand it, the current licensing fee sits at around $1,800. That is an unnecessary burden on many businesses. In fact, this is a question I put to the commissioner: if I was paying that $1,800, what precisely would I be receiving? Other than having signed up to a labour hire scheme, what level of monitoring or regulation from your office would I be receiving? I think the answer was clear, that the bill captures industries that simply do not have labour hire arrangements and therefore it is very questionable what you would be getting for your $1,800.

As I have said before, the Commissioner for Consumer and Business Services, Dini Soulio, has articulated his concerns to me on a number of occasions, and the legislation, I accept, is not working as it stands. Exemptions are being provided to various industries already subject to stringent regulation, and there are more than just teething problems. It is clear, in my view, that the scope does need to be narrowed.

I will give you an example of one that we have argued over. It is the security industry in South Australia. It is already a heavily regulated and licensed industry, subject to significant licensing requirements and fees under the Security and Investigation Industry Act 1995. To license them under this scheme would create an unnecessary duplication.

In addition, security firms are required to be licensed as security agents in order to perform security work, and persons who carry on businesses providing security agents must also be licensed. The directors of such firms are subject to thorough police and Consumer and Business Services scrutiny. As I understand it, the position taken by the government in this bill with respect to the security industry is again consistent with the views of the commissioner. It is clear that members of some professions just do not fall within the labour hire scheme and therefore should not be the subject of a labour hire scheme at all.

The opposition has filed amendments that significantly broaden the scope of industries captured by labour hire licensing requirements. I do not accept, for the record, many of the justifications that have been placed on the record by the opposition. I think I have made that clear. I think that this has become a political issue and we are failing to acknowledge the advice—and I will call it impartial advice—of the commissioner, and he and his advice alone is what we have been guided by.

But I will say this for the record: I have told members of the opposition and stakeholders who have concerns about this that if there are other measures that you think need to be introduced to make this bill better then by all means introduce them and we will consider them, just as I did when I moved amendments to the last bill. I am not convinced, based on the advice that I have received, that any of the additions are problematic, high-risk industries. I have gone through each one meticulously. I have sat down with the commissioner and gone through the list of amendments and there have been none that have stood out as problematic industries that have been brought to the attention of the commissioner.

In the absence of evidence to the contrary, SA-Best will continue to look for guidance from the commissioner in relation to those industries. Of course, in the event that issues of exploitation come to the attention of the commissioner at some point in the future, my 2019 amendments mean that affected industries can be prescribed by regulation. So it is not the be all and end all of potential labour hire arrangements that will be covered by the bill. I note that the amendments have now been incorporated into this bill and that the commissioner, if he identifies that there is an activity or an industry that needs to be incorporated, will have the ability to do so.

The other thing I might mention is that there were another couple of areas that I spoke to both the Attorney and the commissioner about because they did raise some red flags for me. They were around disability and aged-care industries in particular. Again, there were no particular concerns around labour hire schemes, but I did ask the Attorney to go away and look at those two industries or activities very closely and consider whether there is any need to add them to the list of prescribed professions, industries or activities.

The Attorney has undertaken to do that but, more importantly, the commissioner has undertaken to do that. Again, no cases have been brought to bear that relate to those particular industries, but they are certainly on my radar as industries that may warrant some further consideration. I will repeat for the record this undertaking: the experience of the commissioner to date is that there has been no significant evidence to the contrary in relation to what I have just said, so we continue to press ahead with the position that I have outlined.

However, I know there are many industries and activities listed in the opposition's amendments that absolutely are subject to underpayment of wages and/or wage theft but, with respect, that is an entirely different matter. In fact, I think one of the difficulties this bill has presented is that we have conflated two issues: the need to protect workers from labour hire arrangements that seek to exploit them and the need to ensure that workers receive their rightful entitlement to wages.

The Hon. J.E. Hanson: And how they keep records doesn't matter.

The Hon. C. BONAROS: The Hon. Justin Hanson interjects—

The PRESIDENT: Interjections are out of order.

The Hon. C. BONAROS: —but the fact of the matter is that if you are not within the labour hire arrangements and you are underpaid as an employee, or whatever position you are employed as, this scheme will do nothing to protect you. The scheme does not protect workers who are simply underpaid. It is a labour hire licensing scheme.

The Hon. J.E. Hanson: With records.

The Hon. C. BONAROS: It is a labour hire licensing scheme, which covers—

The Hon. J.E. Hanson: I will see you in committee on it.

The PRESIDENT: The Hon. Mr Hanson!

The Hon. C. BONAROS: —labour hire arrangements, not ordinary employment arrangements. When I previously spoke on this bill I referred to correspondence my office had received. In fact, I am actually correcting something for the record here, Mr President. I referred to correspondence received from Brian Smedley of the South Australian Wine Industry Association Incorporated.

The statement that I made at the time was at odds with material put on the record by the Hon. Ian Hunter. The Hon. Mr Hunter was referring to correspondence he had received at the time from Henrik Wallgren, business service manager, also on behalf of the South Australian Wine Industry Association Incorporated, which I was unaware of. That email stated, 'Whilst there are positive aspects of the bill, given the inclusion of the wine industry, SAWIA is unable to support the bill.'

It was certainly never my intention to suggest that Mr Hunter was misrepresenting the views of the organisation, and I have had that discussion with him and made it abundantly clear. In fact, what we have since established is that I was referring to correspondence from the very same organisation but a different representative.

The Hon. Mr Hunter was relying on correspondence from the same organisation but a different representative to me, and the correspondence we were relying on was at odds with the other representative's correspondence. I was in no way imputing Mr Hunter was being untruthful or trying to misrepresent the facts, and I did apologise to him and I apologise again for the record, if that is how it came across. That was not my intention.

What it does highlight, very clearly, is the question of why we received seemingly conflicting correspondence from two representatives from the same organisation over the one issue. With those words, I look forward to the next stage of the debate.

The Hon. R.I. LUCAS (Treasurer) (16:16): I thank honourable members for their contribution to the second reading of the Labour Hire Licensing (Miscellaneous) Amendment Bill 2020. This bill is a product of much deliberation to ensure the government got the balance right. These amendments address many of the issues and concerns raised from industry representative groups and small businesses in relation to the broad nature of the licensing scheme in its current form.

Narrowing the scope of the scheme to ensure that these laws apply specifically to labour hire providers operating within high-risk industries where workers are more vulnerable to exploitation, rather than capturing industries where there is no suggestion of worker exploitation occurring, removes an unnecessary layer of red tape for a significant number of South Australian businesses.

Many of the industries that Labor seeks to include in the scheme are already regulated by Consumer and Business Services, leading to the absurd situation where someone may need to be licensed twice for the same business and pass the exact same probity checks for no benefit to the consumer. The scheme in its current form has proven to be problematic to administer and has caused significant confusion and angst for businesses. I am advised that Consumer and Business Services continue to receive a significant number of inquiries and complaints from various businesses and industry groups across South Australia in relation to the scheme in its current form.

The 2020 bill incorporates amendments filed by SA-Best last year, which will enable additional high-risk sectors to be prescribed by regulation if and when required, as well as unforeseen high-risk activities under the industries identified in the bill, which specifically addresses the concerns raised by the Hon. Mr Hunter during debate last year. These amendments ensure the government has the capacity to address swiftly cases of exploitation that arise in new industries.

The existing legislation was introduced by the former government and passed by parliament in the absence of a national scheme, which the government regards as optimum. However, the amendments before the council today are consistent with the guiding principles that will underpin the development of that national scheme. South Australia will be working closely with the commonwealth in relation to this and shares the federal government's view that implementation of a national scheme will require careful consideration to avoid duplicate regulatory and administrative costs to business at both state and commonwealth levels.

The government looks forward to working with the other states and territories as part of this work. In the meantime, these amendments strike a reasonable balance between promoting the integrity of the labour hire industry within sectors that have consistently been identified as high risk and reducing unnecessary regulatory burden and cost to business. I thank all members again for their contributions.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

The CHAIR: We come to clause 4. The Hon. K.J. Maher is proposing to strike out the clause.

The Hon. K.J. MAHER: I indicate that it is an amendment but it is opposition to the clause in general. As we start the clause, I might ask a couple of questions of the government.

The Hon. R.I. Lucas: Did you say government or governor?

The Hon. K.J. MAHER: Government.

The CHAIR: The Hon. Mr Maher, is there something you know about the Hon. Mr Lucas that we do not or where he is heading across the road?

The Hon. K.J. MAHER: No, I know nothing about the Hon. Mr Lucas that I think is germane to this debate. The government seeks to delete 'workers' and substitute 'vulnerable workers performing low-skilled work' and also replace 'industry' with 'high-risk sectors'. Firstly, where did this originate? On whose suggestion was it that it should be changed in the objects of the act from 'workers' and 'industry' to these other terms? In terms of the specific wording it is being changed to, whose suggestion was that?

The Hon. R.I. LUCAS: As the member would be aware, the government's preferred position was unsuccessful, at the will of the parliament, whenever that was, a year or so ago, and in the alternative the Attorney-General, as the minister responsible, formed the view, after consultation with a range of stakeholders—so no individual person or industry group but a range of stakeholders—that the alternative position should be considered. The Attorney, together with legislative officers within her department and then ultimately parliamentary counsel, helped craft the appropriate framework.

The Hon. K.J. MAHER: Can the Treasurer enlighten the committee as to what it means when they refer to 'low-skilled work', which is the government's preferred choice of words to be put in here?

The Hon. R.I. LUCAS: I am advised that, if ultimately it became a matter of contention in a court, it would ultimately be up to the court to make a judgement in terms of what the commonly understood meaning of the terms 'low skill' or 'high skill' would be. I am sure the member, as a former minister, would be familiar with various categories or classifications in various industrial training and skills issues where the use of the phrases 'low-skilled work' and 'high-skilled work' are common usage in government policy and phraseology. So ultimately, if it became a matter for contention in a court or disputation in a court, it would be up to a court to determine what the commonly used term, in their view, was going to mean.

The Hon. K.J. MAHER: I have to say that, quite frankly, the feigned ignorance from the Treasurer here is offensive. These are the objects of the act. This is the reason the act is here. Section 3 outlines what the objects do. The government is choosing to replace the word 'worker' with 'low-skilled work'. The government has an obligation to inform the chamber, and quite frankly inform the South Australian public—the voting public who may well have this as a campaign issue at the next election—what the government means by 'low-skilled worker'.

For the Treasurer to come in here and say, 'The Leader of the Opposition is a former minister, he should know what it is,' or, The courts might interpret it,' is outrageous and offensive. Treasurer, you are the industrial relations minister in this government. What do you and your government mean by 'low-skilled work' when you choose to use it to replace another word in the legislation?

The Hon. R.I. LUCAS: I am sorry that I have offended the Leader of the Opposition but I am really not in a position to offer any more definitive an explanation than the one I have placed on the record based on advice that I have been given.

The Hon. K.J. MAHER: Just to be clear, Treasurer, are you telling the committee that the words that your government is choosing to use in the objects of this act—that is, 'low-skilled work'—that having chosen to use those words after trying to find an answer for some minutes, which I think gives an indication that the government does not know what the words they are choosing to use mean, are you saying that you do not have an idea of what they mean and it might be up to the court one day to interpret what the government is doing in this legislation? Is that what you are representing to the chamber?

The Hon. R.I. LUCAS: No.

The Hon. K.J. MAHER: In the definition, in the object, the government is seeking to substitute one word for a group of words that the government cannot outline to the chamber that they actually understand the meaning of, and we have discussed that the government does not know what they mean when they choose to use 'low-skilled work'. Instead of asking for a definition, is low-skilled work cleaning work?

The Hon. R.I. LUCAS: I have nothing further that I can add to the explanation I have given to the honourable member, so the member can go through a whole series of individual jobs if he so wishes, but the response will be exactly the same.

The Hon. K.J. MAHER: Is clerical administration work low-skilled work?

The Hon. R.I. LUCAS: I have nothing further to add.

The Hon. K.J. MAHER: Is entertainment venue work low-skilled work, Treasurer?

The Hon. R.I. LUCAS: Mr Chairman, nothing further to add.

The Hon. K.J. MAHER: Treasurer, is meat processing work low-skilled work?

The CHAIR: Do we really need the Treasurer to say he has nothing further to add?

The Hon. K.J. MAHER: These are all things that we are seeking to apply to. If the Hon. Connie Bonaros has a question, I will come back to the list.

The Hon. C. BONAROS: I do have some concerns about this particular provision, perhaps not for the entirely same reasons, but I think it is problematic that that definition does not exist in relation to low-skilled workers, but also I do not think that we have necessarily discussed limiting the scheme to low-skilled workers and I do not see why we would limit a scheme to low-skilled workers. I do not care if you are a low-skilled worker or a high-skilled worker; if you are being exploited, you are being exploited. If you are working under a labour hire arrangement and you are the subject of exploitation, then that is what we should be looking at.

I do have concerns around this provision insofar as it relates to the amendments of mine that have been incorporated into the bill and the undertakings that have been given which would enable the commissioner to prescribe by regulation other activities or industries or professions. So there is a very valid argument that this definition could be at odds with the commissioner's wanting to add a group into the bill because they do not fall within the objects of the act as they are currently defined. I think that is problematic. If the Treasurer would like to respond if he thinks the commissioner could potentially face issues in terms of adding a group to the regulations because of this provision, then I would appreciate the feedback.

The Hon. R.I. LUCAS: Based on the advice that I have, I have nothing further that I can add to the Hon. Ms Bonaros's question or indeed the Leader of the Opposition's question in relation to this particular issue.

The Hon. C. BONAROS: Just to confirm then, for the record, because this was not something we that considered previously—I think we have all been so fixated on the list of professions and undertakings and activities that this has not been the subject of much debate—is it the government's understanding that if the commissioner were to identify disability workers, for instance, given the undertaking they have given, and they do not fall within the group of workers performing low-skilled work, could they potentially be excluded from the other provisions of the bill?

The Hon. R.I. LUCAS: Before I seek further advice on that, can the member outline when she says 'disability workers'—I think one of the important issues in relation to this is some people are talking about low-skilled workers and some are talking about what the definition is which is 'low-skilled work'. You may well be a highly skilled worker in some other area, but for a variety of reasons you might be performing low-skilled work and there has been a slipping between what is actually in the bill, which is low-skilled work, and low-skilled workers.

When the honourable member talks about disability workers, before I seek further advice, can she explain if she is talking about a worker who has a disability or is she talking about a worker who may well have considerable skills in another area but limited skills in a particular area, but working in a sector which provides services to the disabled?

The Hon. C. BONAROS: I am talking about the latter and not the former. Just to confirm for the record, the same argument that I have put would apply to any low-skilled group of vulnerable workers that we have been talking about—work or workers.

The Hon. R.I. LUCAS: I am advised that there is the power under the act as drafted to include the disability sector as a sector if the government so designed it.

The Hon. C. BONAROS: I will make that a more generic question then. Just to confirm, for the record, I do not care if it is disability workers or any other vulnerable worker who is involved in low-skilled work. My question really is: is it possible that the commissioner would want to approve an activity that is undertaken into the scheme and is unable to do so because of the objects of the bill and the narrowing of the scope to vulnerable workers performing low-skilled work?

I do not know who he might decide to include, Treasurer, but at some point he may choose to identify a particular category of workers and say, 'I really think they need to be within the scope of this bill,' and there may be challenges as to whether they ought to be included on the basis that that group of workers are not vulnerable workers who perform low-skilled work. They could be the complete opposite of that. Would he be restricted?

The Hon. R.I. LUCAS: I think the commissioner or the government ultimately has to work within the provisions of the legislation if it is passed. If it was clearly, in anybody's judgement if it went to a court, high-skilled work—that is, you required a PhD in neurophysics or something in terms of the work—and a commissioner decided to do that, then I suspect a court would not sustain that particular position. The commission and the government would have to work within the terms of the legislation as it is passed.

In terms of what the commissioner might be minded to do, I cannot read intent into either the current commissioner or any future commissioners, as I am sure the honourable member would understand. Ultimately, as the member would know with her legal background, if the act says that this is the case then it is bound by whatever a court ultimately will determine is 'low-skilled work', as opposed to 'low-skilled workers'.

The Hon. C. BONAROS: Based on my understanding of those provisions and also of the questions to which it gives rise, particularly around the amendments we have incorporated into the bill, which were the same as those that I moved last time, our position at this point in time will be to support the opposition's amendment between the houses, which I believe seeks to oppose that particular clause, but I indicate that I am more than open to further discussions around any limitations to which that particular provision could give rise.

The Hon. K.J. MAHER: I was going to go through lists of workers to see whether the Treasurer was able to classify them as vulnerable workers where they are performing low-skilled work and whether they are in high-risk sectors, which are now all conditions precedent for the objects of the act to be met, but I will not spend the time doing that. I will just say that the government may wish to reflect, and it may wish to not move this clause themselves, given that the definitions in here, such as 'low-skilled work', 'vulnerable work' and 'high-risk sectors', are definitions that the government and the minister responsible in this area, the Minister for Industrial Relations, has told the chamber they do not know what they mean.

Not even the best advice they can get can outline what they mean by those words. These are not words that they just have to use: these are words the government chose to use. These are their own words. They do not know what they mean. How can someone responsible for the administration of this scheme and the regulation of this scheme have a hope of knowing what they are supposed to be doing and whether workers are included in that if the very architects of the scheme—the government itself—does not know what the words they are choosing to use mean?

I would invite the government to maybe reflect and maybe choose not to pursue this particular amendment, but in the case that they do I will be moving the amendment that this clause not be included.

The Hon. T.A. FRANKS: For the sake of the record, to avoid divisions—unless people really want to have them—I say that the Greens will be supporting the opposition in moving that the clause do not stand.

Clause negatived.

Clause 5.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 3, line 7 to page 5, line 9—Delete clause 5 and substitute:

5—Amendment of section 6—Interpretation

(1) Section 6, definition of labour hire services—delete the definition and substitute:

host—see section 7;

labour hire services—see section 7;

labour hire worker means a labour hire worker under section 8;

(2) Section 6, definition of provider—delete the definition

(3) Section 6, definition of worker—delete the definition

I might just, for the benefit of the committee, outline the approach that we have taken here. It might be that the various groups within the committee might be able to express a view about what they will or will not be supporting and that will, I think, determine in which order some of these are moved, after having had discussions with the Clerk about how this might proceed.

There are two amendments almost in the alternative, if you like. Amendments Nos 2, 3 and 4 [Maher-1] are all related and they seek, in effect, to reverse what is included or excluded. Under the government's current bill, there is a very limited set of industries to which the labour hire licensing scheme will apply, and further can be included by regulation. The effect of amendments Nos 2, 3 and 4 [Maher-1] is to have all industries included, except where they are excluded. We seek to reverse that, where the government has a very small list of industries that is included and can include more.

The effect of our amendments would be to have all industries included but to allow, where necessary, by regulation, some industries to be excluded. That is the opposition's preferred position. We think that is reasonable. We think that then we are not picking favourites. This has come after extensive consultation with other groups that represent workers in these industries, with various unions, with SA Unions and others who are involved in a range of industries where they see exploitation in the labour hire sector happening in areas that go beyond the limited range that the government has introduced. That is our preferred position and that is the effect of what I will call the first set of amendments from the opposition.

The second set of amendments from the opposition is not our preferred position, but we think makes a significant improvement to the bill; that is, it expands the range of work that is included in the bill. It increases the definition of prescribed work to include aged-care work, building work, call centre work, children's services work, cleaning work, clerical administration work, data technician work, disability care work, electrical work, entertainment venue work, facilities and maintenance work, fire protection work, gasfitting work, general labouring work, horticultural processing work, hospitality work, major event work, meat processing work, mining work, nursing work, plumbing work, seafood processing work, trolley work and any other kind of work prescribed by the regulations.

Again, this is in consultation with those who represent workers in many of these industries. We do accept that it may not be a complete and exhaustive list, and we do accept there may be industries where the use of labour hire sees exploitation that is not in here at the moment and it needs to be put in in the future. That is why we have the 'any other work of a kind prescribed by regulations'.

If our first three amendments fail, and that is to include all work except that excluded by regulation, what we next prefer, and what we think is the next best of a bad situation to have to deal with, is to include a greater range of work. They are the two competing sets of amendments. We have to do two slightly different things on this bill. If others in the committee are able to outline what their view is and if they have a preference for one or the other of those ways to proceed, that will help determine what we move and in what order.

The Hon. R.I. LUCAS: I think there is an even simpler proposition. My understanding is that both of the two complicated alternative packages that the Leader of the Opposition is proposing require the deletion of clause 5. So if the majority of the committee does not agree with the deletion of clause 5 we do not have to worry ourselves about the complicated series of amendments that the honourable Leader of the Opposition is proposing to put to the committee.

The government's position is obviously to oppose the amendments in their length and breadth—the pick-a-box amendments—that the Leader of the Opposition is putting on the table. We choose none of the boxes. What we are saying is that they defeat the purpose of the bill as it is outlined. As I understand it, the first vote of the committee will be whether we let clause 5 stand or whether it be deleted.

Those who support the government's position will support the clause standing and those who support the Hon. Mr Maher's position will oppose that. If the majority support the retention of clause 5 then we will not have to worry ourselves about the pick-a-box options that the Leader of the Opposition is tempting the committee with.

The Hon. K.J. MAHER: Again, for the benefit of the committee, I think the Treasurer has outlined it correctly. The process will be that clause 5 stand or not. I guess if members of the committee prefer the government's very, very narrow application of this bill and the government's view that there are whole sections of industry where workers just are not exploited in labour hire, and if people agree with the government's proposition on that, then it stands to reason that members of the committee will vote to have clause 5 stand.

If members think that either expanding it to the list that has been suggested in the second set of amendments by the opposition is a good idea or indeed if it is an even better idea, as we think, to include all industries except those excluded by regulation, then the vote is, as we will be voting, not to have clause 5 pass as it stands and instead have one of those two options. Depending on how the committee is minded, I will move the preferred option first.

The Hon. C. BONAROS: For the record, I think it is worth clarifying that we are not excluding anything by regulation, we are actually enabling the inclusion by regulation and not the exclusion of any industry, activity or profession by regulation. I think that is worth noting. For the reasons I have already outlined, I am not convinced of the alternative list that has been provided, but I do have some questions for the mover.

I do note that originally the issue of security personnel was covered, and that was the subject of quite some discussion as to whether or not they should be in there. It appears from the advice that has been provided that we have accepted that they are already a heavily regulated industry and subject to their own legislation and their own regulatory regime.

My question is: when it comes to nurses or nurse work, does the mover believe that they too, like security personnel, would be subject to two separate regulatory regimes under his amendment? The same can also be asked in relation to plumbing work, gasfitting work and electrical work. For those industries, do we accept that they are already heavily regulated industries, and do they not also fall within the same sort of scenario as security personnel?

The Hon. K.J. MAHER: I thank the honourable member for her question. I have not personally been involved in a lot of discussion about security work, and I disagree fundamentally with the premise. Yes, many of these industries are regulated. They are regulated for the competency of those who work in there. Gasfitters have to be somewhat capable of performing the work which they are holding themselves out as doing. If you are connecting gas fittings, there are significant dangers; of course they are regulated.

This labour hire scheme does not seek to regulate the professional competencies of the work that people do. What this seeks to do is regulate those who hire out the labour in those areas. This regime has nothing to do with the regulation of professional competencies that the honourable member is talking about. This has everything to do with the hiring out of labour and whether that is being done properly and whether workers are being exploited.

The regulatory regimes to which the honourable member refers are consumer protection mechanisms designed to protect those for whom the work is being done: someone getting gas fittings in their house, patients being attended to by nurses. Yes, it is a another regulatory regime, but it has a completely different thing to do. That is to make sure that people who are engaged in labour hire, who are providing labour in those areas, are not ripping off their workers.

The Hon. C. BONAROS: I beg to differ with many of the points that have just been made by the Leader of the Opposition in relation to the purposes of some of those regulatory regimes he has just talked about. But if that is the case, why have you not added security personnel to your list?

The Hon. K.J. MAHER: As I said when I moved this, this is not an exhaustive list. I am, in fact, quite certain there are ones that in the consultation we have done, particularly with the unions who represent workers, we may have missed. As I said, it is not an exhaustive list. That is exactly why work of any other kind prescribed by regulations can be in there. I agree: security work should be in there. If the honourable member accepts that the different regulatory regimes serve different purposes—that is, effectively, consumer protection versus protecting workers—then it is a reasonable thing to think that it should be extended beyond the very narrow list that the government is seeking to narrow it to.

The CHAIR: The Hon. Ms Franks.

The Hon. T.A. FRANKS: Thank you, Chair. I suggest that you are possibly giving me the call to respond to the pick-a-box options that have been presented to me, even though that was a little before my time. I feel some nostalgia, perhaps, that something good might come out of these choices. We will certainly support the opposition's bid. We find it a little unusual that they do not have a preference between their own two sets of amendments, but we will be supporting the scheme being administered in the way that protects vulnerable workers to the maximum force that this parliament can provide.

The Hon. K.J. MAHER: Can I just say, we absolutely do have a preference between the two different options we have presented to this chamber. We prefer amendment No. 2 [Maher-1], amendment No. 3 [Maher-1] and amendment No. 4 [Maher-1], which seek to include all industries except those that are excluded by regulations. That is our preference. I move the first, amendment No. 2 [Maher-1], as a test for the other amendments.

The Hon. C. BONAROS: Can I just clarify for the record: is that amendment No. 2 [Maher-1]?

The Hon. K.J. MAHER: No, we first have to move that it be deleted, do we not?

The CHAIR: Yes. The first question I am going to put, the Hon. Ms Bonaros—and I will not cut you off—is that clause 5 stand as printed. So if you are voting with the government, you will vote aye', and if you are voting with the Hon. Mr Maher you will vote no.

The committee divided on the clause:

Ayes 10

Noes 9

Majority 1

AYES
Bonaros, C. Centofanti, N.J. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. (teller) Pangallo, F. Ridgway, D.W.
Wade, S.G.
NOES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. (teller) Ngo, T.T.
Parnell, M.C. Pnevmatikos, I. Scriven, C.M.
PAIRS
Darley, J.A. Wortley, R.P.

Clause thus passed.

Clause 6.

The CHAIR: There is an amendment in the name of the Hon. K.J. Maher.

The Hon. K.J. MAHER: I will not be moving that amendment. It was contingent on the passage of [Maher-1] amendment No. 2, which we did not get an opportunity to put.

Clause passed.

Clauses 7 to 14 passed.

Clause 15.

The CHAIR: The Hon. K.J. Maher has an amendment at clause 15.

The Hon. K.J. MAHER: I indicate once again that that was contingent on the passage of an earlier amendment that the committee denied the opposition the opportunity to put.

Clause passed.

Remaining clauses (16 to 18) and title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (17:05): I move:

That this bill be now read a third time.

The council divided on the third reading:

Ayes 10

Noes 9

Majority 1

AYES
Bonaros, C. Centofanti, N.J. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. (teller) Pangallo, F. Ridgway, D.W.
Wade, S.G.
NOES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. Maher, K.J. (teller) Ngo, T.T.
Parnell, M.C. Pnevmatikos, I. Scriven, C.M.
PAIRS
Darley, J.A. Wortley, R.P.

Third reading thus carried; bill passed.

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